Wood, J.,
(after stating the facts). We will discuss the questions in the order in which they are presented in the brief of counsel for appellant;
(1) There was no prejudicial error in permitting the counsel for appellee to ask certain witnesses, who had been introduced as expert engineers to testify with reference to the distance in which a train could be stopped, whether or not they had frequently been called by appellant and other railway companies to testify as experts. The court announced that this cross-examination would be allowed to show the interest of the witnesses. It is manifest that the court permitted the cross-examination for the purpose of testing the credibility of the witnesses; and, in the mind of a reasonable man, no prejudicial inference could be drawn from the fact that the witnesses were frequently called by the appellant and other railroad companies to testify in the capacity of experts. The questions were within the bounds of legitimate cross-examination. At least, it was within the sound discretion of the court to permit the questions to he asked and answered, and there was no abuse of the court’s discretion.
The extent to which a cross-examination should go on collateral facts is largely within the discretion of the presiding judge, and is not a matter for reversal unless it plainly appears that the discretion has been abused to the prejudice of the party objecting." St. Louis, I. M. & S. Ry. Co. v. Kelley, 61 Ark. 52.
The fact that expert witnesses were frequently called to testify in that capacity would certainly afford no reason for discrediting their testimony, and no ‘reasonable mind could draw, on that account, an unfavorable inference against the party for whom they were called to testify.
(2) The testimony of the engineer and fireman on behalf of appellant tended to show that they were keeping a constant lookout, and that they did not discover that the appellee was a human being at a sufficient distance from where he was sitting on the platform near the appellant’s railway track to have stopped the train in time to avoid injuring him; that they did everything within their power after discovering that appellee was a human being to stop the train and were unable to do so.
Appellant introduced witnesses who had made tests under essentially the same conditions, whose testimony •tended to corroborate the testimony of the appellant’s engineer and fireman. The testimony of these witnesses tended to show that it was between five and six hundred feet from where appellee was situated to where he could have been first discovered as a human being by those on an engine running at the speed of thirty-five or forty miles an hour.
It was shown on behalf of the appellant that it would take from 850 to 1,050 feet to stop a train going at a speed of thirty-five miles an hour on a level track and everything favorable.
Appellee, in rebuttal, over the objection of appellant, was permitted to introduce the testimony of witnesses to the effect that they went upon the ground, and that at a point on the track considerably over one thousand feet from where appellee was sitting at the time of his injury, they could see a man sitting in a position described by them. The appellant contends that this testimony was incompetent for the reason that the conditions under which appellee’s witnesses made their observations were not substantially or essentially the same as were the conditions under which appellee was injured.
The authorities are unanimous in holding that experiments made after the injury occurred to test the accuracy or inaccuracy -of the testimony of witnesses to the occurrence must be made under conditions that are substantially or essentially the same as were the conditions at the time of the occurrence in order to render such experiments competent. See numerous authorities cited by learned counsel for appellant.
We are of the opinion that the court did not err in holding that the conditions under which the experiments were made by the witnesses on behalf of the appellee were substantially the same. It is true that the witnesses who made these observations were not on an engine, moving at a speed of thirty-five or forty miles an hour, but there was testimony of expert passenger engineers to the effect that one accustomed to the movements of an engine could see a man as plainly from an -engine going thirty-five or forty miles per- hour as one standing or walking on the track. This testimony, although contradicted by expert passenger engineers, testifying for appellant, was, nevertheless, sufficient to render the testimony of the witnesses for appellee competent so far as the essential similarity of viewpoints was concerned. The court.heard the engineer describe, and saw him demonstrate before the jury, the position of appellee when he was injured, and heard the appellee describe the position in which he was sitting and saw him demonstrate that position before the jury. The court also heard the testimony of the witnesses, describing the position’ in which they placed a man on the platform, supposed to be the position.in which appellee was placed at the time he was injured.
The witness who, in the experiments, was placed in the position to represent the position in which appellee was placed at the ■time of bis injury, states: “I got in the same position, supposed to be, that the man was that got hurt. I remained in a reclining position during tbe time the people were taking the observations from a distance up the track. ’ ’
We must assume, therefore, that the court, by admit-' ting the testimony objected to, found that these positions were substantially the same.
The record shows that the attitudes of the witnesses making the experiments, and of the appellee at the time of his injury, were demonstrated before the court and jury. These attitudes can not be shown here, and, indulging every presumption in favor of the ruling of the trial court, we must hold that the court found that the position of the witness who, in the experiment, was intended to represent appellee’s position, was essentially the same as that appellee had at the time of his injury, as described and demonstrated by the engineer and appellee before the jury. There is nothing in the record to show that these positions were not essentially the same.
The court, therefore, did not err in admitting the testimony of the witnesses who made the experiments on behalf of the appellee.
(3) The remarks of the attorney for the 'appellee, in his closing argument, to the effect that he thought “that the old engineer was blind,” was but an expression of his opinion, and not improper. He had the right to draw such deduction, stating it as his own conclusion, from the evidence, however farfetched it may have been. The jury, as sensible men, could not have been prejudiced against appellant on account of this argument. The jury heard the testimony of the engineer and the other witnesses and knew whether the attorney’s conclusion was correct or not. It was a statement of the attorney’s belief from the evidence that “the old engineer was blind,” and'not a statement that such was a fact.
(4)
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Wood, J.,
(after stating the facts). We will discuss the questions in the order in which they are presented in the brief of counsel for appellant;
(1) There was no prejudicial error in permitting the counsel for appellee to ask certain witnesses, who had been introduced as expert engineers to testify with reference to the distance in which a train could be stopped, whether or not they had frequently been called by appellant and other railway companies to testify as experts. The court announced that this cross-examination would be allowed to show the interest of the witnesses. It is manifest that the court permitted the cross-examination for the purpose of testing the credibility of the witnesses; and, in the mind of a reasonable man, no prejudicial inference could be drawn from the fact that the witnesses were frequently called by the appellant and other railroad companies to testify in the capacity of experts. The questions were within the bounds of legitimate cross-examination. At least, it was within the sound discretion of the court to permit the questions to he asked and answered, and there was no abuse of the court’s discretion.
The extent to which a cross-examination should go on collateral facts is largely within the discretion of the presiding judge, and is not a matter for reversal unless it plainly appears that the discretion has been abused to the prejudice of the party objecting." St. Louis, I. M. & S. Ry. Co. v. Kelley, 61 Ark. 52.
The fact that expert witnesses were frequently called to testify in that capacity would certainly afford no reason for discrediting their testimony, and no ‘reasonable mind could draw, on that account, an unfavorable inference against the party for whom they were called to testify.
(2) The testimony of the engineer and fireman on behalf of appellant tended to show that they were keeping a constant lookout, and that they did not discover that the appellee was a human being at a sufficient distance from where he was sitting on the platform near the appellant’s railway track to have stopped the train in time to avoid injuring him; that they did everything within their power after discovering that appellee was a human being to stop the train and were unable to do so.
Appellant introduced witnesses who had made tests under essentially the same conditions, whose testimony •tended to corroborate the testimony of the appellant’s engineer and fireman. The testimony of these witnesses tended to show that it was between five and six hundred feet from where appellee was situated to where he could have been first discovered as a human being by those on an engine running at the speed of thirty-five or forty miles an hour.
It was shown on behalf of the appellant that it would take from 850 to 1,050 feet to stop a train going at a speed of thirty-five miles an hour on a level track and everything favorable.
Appellee, in rebuttal, over the objection of appellant, was permitted to introduce the testimony of witnesses to the effect that they went upon the ground, and that at a point on the track considerably over one thousand feet from where appellee was sitting at the time of his injury, they could see a man sitting in a position described by them. The appellant contends that this testimony was incompetent for the reason that the conditions under which appellee’s witnesses made their observations were not substantially or essentially the same as were the conditions under which appellee was injured.
The authorities are unanimous in holding that experiments made after the injury occurred to test the accuracy or inaccuracy -of the testimony of witnesses to the occurrence must be made under conditions that are substantially or essentially the same as were the conditions at the time of the occurrence in order to render such experiments competent. See numerous authorities cited by learned counsel for appellant.
We are of the opinion that the court did not err in holding that the conditions under which the experiments were made by the witnesses on behalf of the appellee were substantially the same. It is true that the witnesses who made these observations were not on an engine, moving at a speed of thirty-five or forty miles an hour, but there was testimony of expert passenger engineers to the effect that one accustomed to the movements of an engine could see a man as plainly from an -engine going thirty-five or forty miles per- hour as one standing or walking on the track. This testimony, although contradicted by expert passenger engineers, testifying for appellant, was, nevertheless, sufficient to render the testimony of the witnesses for appellee competent so far as the essential similarity of viewpoints was concerned. The court.heard the engineer describe, and saw him demonstrate before the jury, the position of appellee when he was injured, and heard the appellee describe the position in which he was sitting and saw him demonstrate that position before the jury. The court also heard the testimony of the witnesses, describing the position’ in which they placed a man on the platform, supposed to be the position.in which appellee was placed at the time he was injured.
The witness who, in the experiments, was placed in the position to represent the position in which appellee was placed at the ■time of bis injury, states: “I got in the same position, supposed to be, that the man was that got hurt. I remained in a reclining position during tbe time the people were taking the observations from a distance up the track. ’ ’
We must assume, therefore, that the court, by admit-' ting the testimony objected to, found that these positions were substantially the same.
The record shows that the attitudes of the witnesses making the experiments, and of the appellee at the time of his injury, were demonstrated before the court and jury. These attitudes can not be shown here, and, indulging every presumption in favor of the ruling of the trial court, we must hold that the court found that the position of the witness who, in the experiment, was intended to represent appellee’s position, was essentially the same as that appellee had at the time of his injury, as described and demonstrated by the engineer and appellee before the jury. There is nothing in the record to show that these positions were not essentially the same.
The court, therefore, did not err in admitting the testimony of the witnesses who made the experiments on behalf of the appellee.
(3) The remarks of the attorney for the 'appellee, in his closing argument, to the effect that he thought “that the old engineer was blind,” was but an expression of his opinion, and not improper. He had the right to draw such deduction, stating it as his own conclusion, from the evidence, however farfetched it may have been. The jury, as sensible men, could not have been prejudiced against appellant on account of this argument. The jury heard the testimony of the engineer and the other witnesses and knew whether the attorney’s conclusion was correct or not. It was a statement of the attorney’s belief from the evidence that “the old engineer was blind,” and'not a statement that such was a fact.
(4) The issue of negligence was whether or hot the employees of appellant were exercising ordinary care in keeping jthe constant lookout required by the statute, and whether, in the exercise of such care, they discovered or should have discovered that appellee was a human being, and therefore in a perilous position, in time to have avoided injuring him.
The court correctly instructed the jury on this issue. Instruction No. 2, set forth in the statement, and instruction No. 3: “You are instructed that, before you would 'be authorized to find for the plaintiff, that you must find, first, that he was injured by reason of the neglect of the employees of the railroad company to keep a constant lookout; and, second, that, had such lookout been kept, that the employees of defendant company could have discovered that plaintiff was in actual danger or peril of injury in time to have prevented injuring him by the exercise of reasonable care after 'discovering such peril,” given at the request of appellant correctly defined the issue under the evidence. In these instructions both sides had the law defined covering the phases of the testimony tending to prove their respective contentions. Instruction No. 2 was not open to the specific objection which appellant contends it made to it by its request for instruction No. 15, which the court refused. Because, when the court told the jury that before they could find for the appellee, they must find that the employees of the appellant, by exercising ordinary care, saw or could have seen appellee in a perilous position in time to have avoided injuring him, this was tantamount, to telling them that 'they must find that the employees of appellant, by exercising ordinary care, saw or could have seen that appellee was a human being, and therefore in a perilous position, in time to have avoided injuring him, etc. Appellee, so far as the duties of the employees of appellant were concerned, was not in a perilous position until they discovered or could have discovered that he was a human being. Therefore, telling the jury that they must find that the employees saw or could have seen that appellee was in a perilous position before they could return a verdict in his favor was equivalent to telling them that they must find that the employees saw or could have seen that he was a human being and in a perilous position, etc.
Instruction No. 3, given at the instance of appellant, uses substantially the same language in presenting the contention of appellant as that set forth in instruction No. 2, given at the instance of appellee. The court did not err therefore in granting appellee’s prayer for instruction No. 2, and in refusing appellant’s prayer No. 15.
Even though appellant’s prayer No. 15 was correct, it was not error to refuse it, because it was fully covered by the instructions which the court gave. St. Louis, I. M. & S. Ry. Co. v. Leflar, 104 Ark. 528; St. Louis, I. M. & S. Ry. Co. v. Aiken, 100 Ark. 437; St. Louis, I. M. & S. Ry. Co. v. Clements, 93 Ark. 15; St. Louis, I. M. & S. Ry. Co. v. Garner, 90 Ark. 19.
(5) The measure of damages is what the jury may find from the evidence to be a fair and just compensation with reference to the pecuniary and other losses which appellee has sustained by reason of his injuries. In determining this the jury should take into consideration his age, health, habits, occupation, expectation of life, mental and physical capacity for and disposition to labor, personal expenses, for treatment, rate of wages, earning power and probable increase or diminution of that power with the lapse of time, pain and suffering which he has endured and shall continue to endure, and mental anguish on account of the disfigurement of his person.
All these are proper elements for the consideration of the jury in determining the amount of his compensation. The jury, in determining the amount that shall represent the present compensation to the plaintiff for all damages of every character which he has sustained by reason of the injuries, should reduce whatever amount they found to be due the plaintiff to its present value and return their verdict for that amount. See Sutherland on Damages, vol. 4, chap. 36, sections 1241 to 1252, inclusive. See, also, St. Louis, I. M. & S. Ry. Co. v. Sweet, 60 Ark. 560; St. Louis, I. M. & S. Ry. Co. v. Hitt, 76 Ark. 224.
Mr. Sutherland says that the material inquiries in regard to the pecuniary loss on account of diminution of earning power are as follows: “What is a pecuniary equivalent for this loss per year, and how long will it continue? The answer to them must be chiefly found in the nature of the injury, the age and general health of the injured party, and his antecedent earning capacity as indicated by his qualifications and the character of his business or calling. In respect to years to come, the recovery will be like payment in advance, and the amount should be reduced to its present worth.” Citing, Fulsome v. Concord, 46 Vt. 135; The William Branfoot, 48 Fed. Rep. 914.
It follows that when appellant objected to appellee’s prayer No. 3, on the measure of damages, for the specific reason that “it ignored the reduction to the present value of the matters that are mentioned in it, ’ ’ the court should have told the jury that the amount found by them should be reduced to its present value. But when the whole record on the subject is considered, as set forth in the statement, we are of the opinion that there was no prejudicial error to appellant in the court’s failure to so tell the jury.
The court requested counsel who made the specific objection to the instruction “to offer any instruction that they might want given upon the matter of the sum that might be awarded to the plaintiff by reason of his inability to labor being reduced to its present worth.” Then the record shows that the attorney who made the closing argument for the appellee, after stating the amount which he calculated from the evidence that the plaintiff had lost by reason of his diminution in earning power, said that “the jury should reduce this to its present value to determine what his loss is.” This shows that the appellee, through his counsel, interpreted the court’s instruction to mean that the amount found by them must be reduced to its present value. As the appellee was only insisting on the present value of the loss that would accrue to him in the future by reason of his diminished earning power, the jury.were not justified in awarding him a greater sum than such amount when reduced to its present value.
(6) The court did not err in refusing appellant’s instruction No. 1, directing the jury to return a verdict in its favor. The issue of negligence, under the evidence, was one of fact for the jury. The evidence was sufficient on that issue to sustain the verdict.
(7) The verdict is excessive.
Counsel for appellee, in his closing argument, said: “It will be $28,860 that he has lost by reason of the fact that he will never work again. That amount the jury should reduce to its present value to determine what his loss is.”
It is probable, from the amount of the verdict, that the jury misunderstood the suggestion of counsel that the amount should be reduced to its present worth and instead allowed appellee for his earning power the full sum of $28,860. Seven hundred and eighty dollars, the amount he was earning per annum, multiplied 'by 36.7 years, his expectancy, would equal $28,626.
If the jury fixed upon $780 as the sum which appellant would have received for 36.7 years had he lived, then this amount reduced to its present value would have equaled $15,249.
This amount is according to the figures presented by appellant’s counsel, and appellee’s counsel concede that these figures are correct upon the basis of a loss of $780 per annum, but appellee contends that the jury could have and should have found that appellee’s earning power should have been calculated on a basis of $1,680 per annum, or $140 per month, instead of $780 per annum, or $65 per month, the amount that he was receiving at the time of his injury.
While the testimony shows that appellee was efficient in his work, and was in the line of promotion, the jury would not have been justified in increasing the salary that he was receiving at the time of his injury, towit, $780 a year, to the sum. of $1,680 a year. That was an increase out of all proportion to what the evidence would justify as his- prohable increase of earning power, and such an estimate would ignore all contingencies of sickness and probable failure to secure promotion and employment. These the jury would have to consider and counterbalance against the probability of promotion and continuous employment for. the full period. That estimate also would leave out of consideration the fact that appellee, although deprived of his lower limbs below the knees, was not shown to have been totally disabled from securing some kind of remunerative employment.
Even at an annual income of $1,680 as wages, without deduction, for the full period of appellee’s -expectancy, the sum reduced to its present value would have been $27,370. That would have left $7,636 for the other elements of damage.
The appellee is horribly maimed. He has suffered intensely, and will continue to suffer as long as he lives. There is no fixed standard of value for the physical pain and suffering, and the mental anguish which he has endured, and must endure. These are not susceptible of adequate measurement, for no price has been nor can be set upon human limbs. No normal person would endure the physical pain consequent upon the loss of his legs, and the mental anguish caused by such disfigurement, for all the gold in the world. But the law affords to one who has been thus injured through the negligence of another just and reasonable compensation. It is the peculiar province -of the jury to determine from the evidence what the damages by way of compensation should be. But when the jury has named the amount, it is at last for the courts to say whether this amount exceeds the bounds of reasonable compensation as the law prescribes.
While it is impossible for this court to know precisely the elements that entered into the minds of the jury in. arriving at a verdict of $35,000, it is certain that this amount far exceeds the sum that the jury should have allowed as covering -all the elements proper to be consi-dered by them when fixed according to the correct rule of giving appellee present compensation for all the damages which he has and will sustain.
In our opinion a judgment in the sum of $25,000, will fully compensate him for all damages growingout of his injuries. The judgment of the lower court will be modified and affirmed for this sum.