PER CURIAM.
In this action, defendant in error, John R. Edwards, hereafter referred to as “plaintiff”, seeks to recover damages from the plaintiffs in error, Missouri-Kansas-Texas Railroad Co., hereafter referred to as “Katy”, and Ernest A. Durbin, hereafter referred to as “Durbin”, for personal injuries sustained upon an automobile in which plaintiff was a passenger being struck by one of Katy’s freight trains at a point where Sheridan Road crosses Katy’s railroad tracks in or near the east portion of Tulsa, Oklahoma. When plaintiffs in error are referred to collectively herein, they will be referred to as “defendants”. Plaintiff also seeks to recover damages for medical expenses incurred and those which will be incurred because of serious and permanent injuries sustained by his wife, Carmen, who was also injured in the collision.
Plaintiff alleged in substance in his petition that the collision and the bodily injuries that he and his wife sustained as a result thereof were the direct result and proximate cause of Katy’s and Durbin’s, (who was the engineer on the freight train) negligence in that (1) defendants operated the train at a speed in excess of 40 miles per hour in violation of an ordinance of the City of Tulsa relating to the speed of trains traveling within the corporate limits of said city; that (2) Durbin failed to sound the whistle or ring the bell on the locomotive to the train at a distance of at least eighty rods from the crossing in violation of the statutes of this State; that (3) Katy failed to install adequate warning devices in addition to those contemplated by 66 O.S.1951 § 124, at the crossing which was unusually dangerous. In his original petition, plaintiff sought to recover damages in the amount of $285,-137.30. By amendment to the petition he sought to recover damages in the amount of $325,804.85 and prior to trial he amended his petition instanter so as to seek damages in the amount of $750,804.85.
In their answer, defendants denied the allegations of plaintiff’s petition. Defendants pleaded further that if plaintiff were injured his injuries were due to his negligence and that of his agent (and daughter, Darla) who was operating the automobile involved in the collision; that if defendants were negligent, plaintiff’s negligence contributed to the collision and resulting injuries; that the collision was unavoidable.
The case was tried to a jury. The jury returned a verdict in plaintiff’s favor in the amount of $650,000. From judgment on the verdict, defendants perfected this appeal.
The uncontroverted evidence which is thought pertinent to this appeal can be summarized as follows:
At the time the collision occurred, March 13, 1956, at approximately 8:40 a. m., a light rain was falling. The asphalt paving over which the automobile involved in the collision was being driven, was wet. The paving at and near the crossing was uneven and broken. Witnesses described the paving at said point as being “washboardy”.
Katy owned the railroad tracks and the train. Durbin was its agent and engineer.
The automobile was owned and operated by plaintiff’s daughter, Darla, who was the only child of plaintiff and his wife. Plaintiff’s wife was the only other passenger in the automobile. She was seated in the middle of the front seat and plaintiff seated immediately to her right. Darla frequently passed over the crossing and was familiar [462]*462with same. The automobile approached the crossing from the south at a rate of speed of approximately 30 miles per hour.
At the point of the collision, Katy’s tracks extend in a northwesterly-southeasterly direction. The train approached the crossing from the northwest. It was agreed that the train was traveling not less than 35 miles per hour as it approached the crossing. An ordinance of the City of Tulsa fixed the maximum speed at which trains should operate within its corporate limits at 25 miles per hour.
There was a hill to the west and south of the crossing, which hill crested approximately 300 feet south of the crossing. The hill served to obstruct the view of a northbound motorist to his left or northwest up the Katy’s tracks until he reached a point near the crossing. The only warning device at the crossing was the customary “cross-bucks” which were placed on either side of the road at points approximately 46 feet from the crossing.
The corporate limits of Tulsa had been extended to the east and embraced the west portion of Sheridan Road but not the east portion of said road.
As a result of the collision, plaintiff and his wife sustained serious and permanent injuries.
In discussing the contentions of the parties, we will refer to other evidence that bears on said contentions.
There was competent evidence sustaining each of the heretofore referred-to alleged acts of negligence which were set forth in plaintiff’s petition. The defendants, however, contend that the evidence fails to show that said acts of negligence on their part were the proximate cause of the collision and in the alternative urge that the trial court committed reversible error by permitting plaintiff to introduce prejudicial evidence which was incompetent and irrelevant; by failing to properly instruct the jury and by permitting plaintiff’s counsel to make improper and prejudicial statements in his argument to the jury. Defendants also contend that the statutes creating the Superior Court of Creek County are unconstitutional and that said court was wholly without jurisdiction to try the instant case (this contention runs counter to our decision in Missouri-Kansas-Texas Railroad Co. v. Coryell, Okl., 346 P.2d 935), and that the verdict of the jury is excessive.
In support of their contention to the effect that negligence on their part was not the proximate cause of the accident, defendants refer to Darla’s testimony to this general effect: At a point approximately 46' to 97' from the crossing she looked to her left (northwest) and then to her right (southeast) and then to her left. Upon looking to the left she saw the engine of the train; that when she first looked to her left she was traveling approximately 15 miles per hour.
A witness testified as an expert that an automobile traveling 15 miles per hour will travel 22' per second; that an automobile traveling at said speed can be braked to a stop in 14'; that the period transpiring between the time that an operator sees an object which dictates application of his brakes and the application of same varies from ¿4ths to one second; that as a rule an automobile traveling at 15 miles per hour will travel 15' during said reaction period; that in the instant case a distance of approximately 8' should be allowed for the rough condition of the pavement and the fact that it was wet.
Using the referred-to testimony as a premise, defendants argue that Darla could and should have braked her automobile to a stop in from 37 to 44 feet after becoming aware of the approaching train.
Defendants contend that Darla testified that she first saw the locomotive when her automobile was not less than 70' from the crossing; that the locomotive was then not less than 400' from the crossing; that since Darla should have braked her automobile to a stop in not less than 44' after seeing the locomotive her negligent failure to stop her automobile before it reached the crossing was the proximate cause of the collision. Defendants contend that there is [463]*463no evidence contrary to the referred-to evidence upon which they rely. We are unable to agree.
Darla did not undertake to fix the exact number of feet that h'er automobile was from the crossing when she first saw the train. She was asked this question: “Can you fix the place where your car was between the utility pole (which was 97' from the crossing) and the cross-buck sign (which was 46' from the crossing) when you first saw the train ?” to which question she answered: “No sir, I can’t tell you. It somewhere in that vicinity but where I wouldn’t know. I have no idea.”
Darla testified that the brakes to her automobile were mechanically good and there is no evidence to the contrary. She also testified that she applied her brakes immediately upon seeing the train and that the braking action caused the wheels to lock. Her testimony in the last mentioned particular is corroborated by Durbin’s testimony. The evidence shows that the automobile did not come to a stop until after it reached the crossing. In view of said evidence the jurors could have concluded that Darla’s automobile was less than 37' to 44' from the crossing when she first saw the train for the reason that if she had seen the train at a greater distance, the automobile would have been braked to a stop before it reached the crossing.
After having reviewed the record, we are of the opinion that the matter of whether Darla saw the train in time to brake her automobile to a stop was a question of fact for the jury. We are, therefore, of the opinion that whether Darla’s alleged negligence in said particular or the negligence of the defendants was the proximate cause of the collision was a question of fact for the jury. In the first paragraph of the syllabus to Chicago, R. I. & P. Ry. Co. v. Richerson, 185 Okl. 560, 94 P.2d 934, this was said:
“The question of the degree of care required of a railroad company to avoid an accident with a motorist at one of its highway crossings in a given situation, and the question of whether its failure to exercise the care incumbent upon it was the proximate cause of said accident, are questions for the jury where reasonable men may differ as to what facts the evidence establishes and the reasonable inferences to be drawn therefrom.”
See also McBroom et al. v. Meyer, Okl., 303 P.2d 303.
Defendants contend that the trial court erred in permitting an expert witness to give an opinion as to the dangerous condition of the crossing. We quote the question and answer thereto that defendants complain of:
“Q. Based upon the examination you made on that day, the sight lines which you made, the study of the ground — I call it topography, that may or may not be right — and the road or track, do you have a judgment based upon the study you have made at these Universities and the experience you have had in 15 years as to whether or not that for vehicular traffic going north is a dangerous crossing?
“A. Yes, in my opinion it is a dangerous, hazardous crossing.”
Defendants objected to the above question and answer on the grounds that same invaded the province of the jury and called for a conclusion on the part of the witness, which objections were overruled.
The authorities appear to be in accord on the proposition that as a general rule the testimony of a witness upon matters within the scope of the common knowledge and experience of mankind, must be confined to statements of concrete facts within their observation, knowledge and recollection. A well-founded exception to said rule is that when the conclusion to be drawn from the facts depends upon professional or scientific knowledge or skill and is not within the range of ordinary training or intelligence, a qualified expert may give his conclusion or opinion based upon said facts. 20 Am.Jur. “Evidence”, Sec. 765, p. 634; [464]*46432 C.J.S. Evidence § 446, p. 74, and Hicks v. Davis, 32 Okl. 195, 120 P. 260.
. The evidence in this case, which included photographs of the area in the vicinity of the crossing, developed all pertinent facts bearing upon the issue relative to whether the crossing was in fact unusually dangerous. The jurors, as persons of ordinary knowledge and experience, were, in our opinion, capable of arriving at a conclusion on said issue without benefit of the testimony of an expert witness. We are, therefore, of the opinion that the trial court erred in permitting plaintiff to introduce the evidence of which defendants complain. We are, however, of the opinion that this error does not, for reasons hereafter given, require reversal of the judgment of said court.
As heretofore pointed out, plaintiff alleged that defendants were negligent in operating the train at a speed in excess of that permitted by applicable ordinance of the City of Tulsa; in failing to sound a timely warning and in failing to install adequate warning devices at the crossing which was alleged to be unusually dangerous. The last referred-to alleged act of negligence is not attributable to Durbin who, as Katy’s engineer, is not responsible for the condition of the crossing. Katy and Durbin are jointly responsible for the other alleged acts of negligence that are above referred to. In view of the fact that the jury returned a verdict against Durbin, the jury must be said to have concluded that Durbin was either negligent in operating the train at a speed in excess of that permitted by city ordinance or that he failed to sound a timely warning. Under the doctrine of respondeat superior, Katy would be responsible for the negligent acts of Durbin in either of the last mentioned particulars. We are, therefore, of the opinion that Katy is not in a position to predicate reversible error on the admission of the expert’s testimony. In Cook v. Atlantic Coast Line Railroad Co., 196 S.C. 230, 13 S.E.2d 1, 133 A.L.R. 1144, a witness was permitted to testify in a railroad-crossing action involving the railroad and its engineer, that no flagman was stationed at the crossing when the accident occurred. The plaintiff alleged in his pleading that the railroad and its engineer were negligent in not sounding the warning device on the locomotive to the approaching train and he did not allege that there was a failure to maintain adequate warning devices at the crossing. For said reason, the appellate court held that the testimony above referred to was inadmissible, but further held that since a verdict was rendered against the engineer who was not responsible for the safety of the crossing, that the admission of the testimony was not prejudicial.
Katy does not contend that there is no competent evidence showing that the crossing was unusually dangerous. In view of this fact and the further fact that the jury in finding against the engineer must, as aforesaid, be said to' have found that one or both of the acts of negligence for which the engineer and Katy were jointly responsible were established by the evidence, we are of the opinion that the error which Katy complains of is in fact harmless error. It is provided in part in 22 O.S. 1951 § 1068, that “no judgment shall be set aside or new trial granted * * * unless, * * * after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”
In the first instruction given to the jury, the trial court stated all allegations of the pleadings. Katy excepted to the instruction but did not submit an instruction covering the issues formed by the pleadings. Katy contends that the “petition was drawn so as to state plaintiff’s case in its most favorable light and contained much inflammatory and argumentative matter. Many of the claims were exaggerated and were stated in colorful language which the plaintiff did not support by evidence and had no intention of supporting.” Katy failed to point out the allegations of the petition which it referred to in the quoted statement.
[465]*465The jury was instructed that “This statement of the pleadings simply defines the issues to he tried and the allegations therein made do not constitute any part of the proof of the facts alleged, except where a fact .is specifically alleged and is specifically admitted by the other party.” In other portions of the instructions the court made clear the issues posed by the pleadings and the evidence. The claim of error on the trial court’s part is, in our opinion, without substantial merit.
In the third paragraph of the syllabus to Parkade Corp. v. Chehock, Okl., 312 P.2d 932, 933, this is said:
“The incorporation of the petition and answer in the court’s instructions is not prejudicial error, where in other portions of the instructions the issues are clearly stated.”
Defendants complain of Instruction “No. 39” relating to recoverable damages, on the grounds that there was a failure to instruct that in fixing future damages the jury should consider the present value of a recovery for estimated future losses or expenses. Such an instruction is necessary and proper where recovery is sought under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., but not in cases such as this. Moreover, defendants failed to submit a requested instruction relative to allowable damages, and for said reason they are not in a position to predicate error on the giving of the referred-to instruction. See Willis v. Davis, Okl., 333 P.2d 311, 314, and cited cases.
Defendants also complain of Instructions “No. 25 and 26”, which relate to the issue of whether the collision occurred within or without the corporate limits of Tulsa and the provisions of an ordinance of said City fixing the maximum speed of trains within its boundaries. The complaint is based upon the proposition that the evidence shows that the collision occurred outside the corporate limits of Tulsa and for-said reason the city ordinance was without application. There was competent evidence showing that the collision occurred within the corporate limits of Tulsa and for said reason we are convinced that the complaint is without merit.
Defendants contend that the judgment should be reversed and a new trial granted because of improper and prejudicial argument on the part of plaintiff’s counsel to the jury.
The only objections to the argument of plaintiff’s counsel were these: During his argument, said counsel commented on the fact that Darla appeared to be nervous while on the witness stand and undertook to explain the reason for her apparent nervousness. Counsel for defendant interposed an objection to this argument and the trial court admonished plaintiff’s counsel thus: “Confine yourself to the record.” Shortly before plaintiff’s counsel concluded his closing argument, counsel for defendants approached the bench and stated to the court in substance that plaintiff’s counsel had exceeded the time allowed him for closing argument and that the argument was “killing” the defendants.
In the third paragraph of the syllabus to Westgate Oil Co. et al. v. McAbee, 181 Okl. 487, 74 P.2d 1150, 1151, we stated that:
“Prejudicial remarks of counsel in his argument to the jury are not available as a ground for reversal unless objected to and exception taken at the time such remarks were made, and the remarks, as well as the objection and exception thereto, must be shown in the record of the proceedings of the trial. ⅜ ⅝ *»
The last above referred-to remarks of counsel for defendants wholly failed to represent compliance with the rule laid down in the last cited case. A review of the record fails to show that the argument to which a specific objection was made, and which objection was in effect sustained, served to prejudice defendants.
Not only did defendants fail to object to the major portion of the argument that they complain of, they also failed to assign [466]*466as error in their motion for new trial the making of said .argument. In the second paragraph of the syllabus to Ketch v. Smith, 131 Okl. 263, 268 P. 715, we said that “Where the misconduct of counsel is made one of the grounds of error on appeal, the facts upon which said error is based must clearly appear in the record, must be saved in motion for a new trial, and must be of such character as would prejudice the cause of the complaining party.” And in Coal Oil and Gas Co. v. Styron et al., Okl., 303 P.2d 965, 970, we said that “Under the oft repeated rule in this court, alleged error not presented in the motion for new trial will not be reviewed by this court.” The law being as stated, defendants are not in fact privileged to assert the error that they attempt to assert.
Defendants contend that in conducting the trial of plaintiff’s case his counsel in fact presented the claim of each member of the family for damages resulting from the collision in which all members of the family sustained bodily injuries. Defendants refer to the statement of plaintiff’s counsel in his opening statement to the effect that the Edwards family was “an ordinary American family”; that in his closing argument said counsel stated that the Edwards family “was an ordinary good and affectionate family until this came up”; that counsel made the further statement in his argument that there had never been a law suit which had such a “terrific impact upon the family”. Defendants failed to object to the statements so made and also failed to allege in their motion for new trial that the statements constituted error. We are, therefore, of the opinion that defendants are not in a position to predicate error on the alleged prejudicial statements of plaintiff’s counsel.
In connection with the last referred-to contention, defendants again point to the fact that plaintiff’s counsel referred to Darla’s apparent nervous condition and attempted to give the reason for her condition which was attributed in part to the fact that it might be necessary to place plaintiff in a mental institution because of an injury to his brain which was sustained as a result of the collision. This is the line of argument to which defendants interposed an objection which was in effect sustained.
All members of the Edwards family were to an extent involved in the trial of the case. All members of the family were riding in the automobile involved in the collision. Darla operated the automobile and appeared as a witness. Plaintiff sought to recover damages for past and future medical expenses attributable to the bodily injuries sustained by his wife in the collision. It is agreed that such a claim was properly asserted by plaintiff and since such is the case, the nature and extent of Carmen’s injuries could properly be shown in order to show the necessity of past and future medical care and attention. As we read the instruction, the jury was advised that it was considering only plaintiff’s cause of action for damages and not Darla’s nor Carmen’s causes of action for damages. To our way of thinking, defendants have failed to show that the several claims of the Edwards family were submitted to or considered by the jury.
Defendants also contend that the verdict is excessive. We agree.
As of date of the collision, plaintiff was 55 years of age and had a life expectancy of 21.02 years. Prior to the accident he was an able-bodied man. He was regularly employed at a salary of approximately $4,000 per year. As a result of bodily injuries sustained in the collision, plaintiff will never be able to work. Plaintiff’s principal injuries were concussion and contusion of the brain; damage to the central nervous system; fracture of the right jaw; fracture of the ribs on the right side; fracture of the left ankle; severe lacerations about the face, neck and forehead; severe tearing, laceration and bruising of the muscles, nerves, ligaments and bones in the neck; extreme shock; and contusions, abrasions, and lacerations over and about the entire body. As a result of said injuries, plaintiff suffered considerable pain and will continue to suffer some pain in the future.
[467]*467As a result of the brain injury, plaintiff is periodically irrational. There was competent evidence to the effect that his condition in said respect is such that it will he necessary to place him in a private institution.
Carmen’s principal injuries were partial evulsion of the scalp; comminuted fracture of the right femur, left femur and left tibia; intracapsular fracture of the right hip; brain concussion, damage to the central nervous system; and broken neck and shock.
The record clearly shows that Carmen’s injuries were serious and permanent. At the time of the collision, she was 52 years of age. Her life expectancy was 27.15 years.
Plaintiff schedules his “actual damages” as loss of earnings, $84,441.75; plaintiff’s past medical expenses, $7,103.55; future medical expenses, $22,824.00; Carmen’s past medical expenses, $21,466.80; future medical expenses, $15,000.00; plaintiff’s future custodial care, $114,120.00; Carmen’s future care and custody, $22,635.99; licensed practical nurse for Carmen in the future, $220,314.00. The aggregate amount of said items is $507,905.00. Plaintiff points out that the figures which he gave do not include damages attributable to pain and suffering.
We note that all of the figures and evidence to which plaintiff refers, except the sums of $7,103.55 and $21,466.80 and an allowance for loss of earnings to date of trial, and damages for pain and suffering which plaintiff suffered to date of trial relate to damages that will probably be sustained in the future. While it is impossible to state the precise amount of damages which the jury awarded as actual damages sustained as of date of trial, it is apparent that the major portion of the award covered damages which will probably occur in the future.
As to the asserted claim for $222,314 as cost of a licensed practical nurse in the future for Carmen, we note that Carmen testified in substance that her condition was such that it was necessary to employ a housekeeper at $75 per month and that as of date of trial a licensed practical nurse was not employed. While the evidence clearly shows that Carmen sustained serious and permanent injuries, the evidence fails to show that she is a helpless cripple. A physician who had attended her stated in substance that she was capable of doing some of her housework.
As to the asserted claim for $114,120 as custodial care for plaintiff, the evidence fails to show that such care had been extended prior to the trial. In making this statement, we have not overlooked the fact that there was competent evidence to the effect that because of plaintiff’s mental condition, he should be placed in an institution where he would be properly cared for and that the cost of such care would be $500 per month,
In determining whether a verdict in an action such as this is excessive, a court will consider all relevant circumstances such as the nature and extent of the injuries; pain endured and that which may be endured in the future; expenses incurred and those which may be incurred in the future; the age of the person injured and his life expectancy; his earning capacity prior to the injury and the extent of the impairment of earning capacity. See 15 Am.Jur. “Damages”, Sec. 209, p. 627. And where future damages are awarded, the present worth of the amount awarded as such damages will be considered. See Gallaspy v. Walner, Okl., 324 P.2d 848, 853; St. Louis-San Francisco Railway Co. et al. v. Fox, Okl., 359 P.2d 710; and 15 Am.Jur. “Damages”, Sec. 24, p. 416.
Our decisions reflect that in determining whether the amount awarded as damages is excessive, we will give due consideration to the provisions of 23 O.S.1951 § 97, to the general effect that damages in all cases must be reasonable and that no more than reasonable damages may be awarded.
After having carefully reviewed the record, we have concluded that the verdict herein is excessive to the extent of [468]*468$371,207 and for said reason the defendants are entitled to a new trial unless plaintiff, within 30 days after the mandate herein reaches the trial court, agrees to a remittitur of that part of the judgment, which, exclusive of costs, exceeds the sum of $278,793.
Affirmed subject to remittitur of $371,207, otherwise reversed and remanded for new trial.
BLACKBIRD, V. C. J., and WELCH, DAVISON, JOHNSON, IRWIN and BERRY, JJ., concur.
WILLIAMS, C. J., and HALLEY and JACKSON, JJ., dissent.