The opinion
HUGHES, Justice
(dissenting).
The disturbing question in this case is whether a finding that a non-negligent act of the defendant was the sole proximate cause of plaintiff’s injuries conflicts with other issues finding defendant guilty of negligence which was a proximate cause of his injuries, and, if so, the effect of such conflict. It is obvious, of course, that there is a conflict. Whether the conflict is fatal to the judgment is not so obvious.
The majority cites authorities to the effect that the issue of “sole proximate cause” is not available to a party as to his own acts but is used only with reference to the acts of a third party or an extraneous occurrence. The basis for these decisions is that since a proximate cause both as to primary negligence and contributory negligence is sufficient for the purpose of rendering judgment the issue of “sole proximate cause” should not be used since its use would likely result in conflicting findings. See Lewis v. Lansing, 325 S.W.2d 214 , Tex.Civ.App., Fort Worth, no writ (1959).
However, there are certain instances when the issue of sole proximate cause is proper even as between parties. See Sec. 22, p. 58, Hodges on Special Issue Submission in Texas. 1
It seems to me that it is proper to inquire if a non negligent act of the defendant is the sole proximate cause of plaintiff’s injuries for the same reason that it is proper to inquire if the act, negligent or non-negligent, of a third party or an extraneous incident is the sole proximate cause of his injuries. The reason is that in the tort field a person is not liable for any injury or damage that is not a consequence of his negligence.
I would hold that there is a conflict in the jury answers as contended by appellant and would reverse and remand this case. I, therefore, respectfully dissent.
If the case is to be affirmed, I respectfully dissent from that portion of the majority opinion which requires a remittitur to avoid reversal. In my opinion, the verdict as to damages is not excessive. See Texas Consolidated Transportation Co. v. Eubanks, 340 S.W.2d 830 , Tex.Civ.App., Waco, writ ref., n.r.e. (1960). (Railroad engineer, 63 years of age at time of death, $9,000.00 per year earnings. $125,000.00 award to evidence and $37,500 to 13 year old daughter not excessive.) Missouri Pacific Railroad Company v. Ramirez, 326 S.W.2d 50 , Tex.Civ.App., Waco, writ ref., n.r.e. (1959). (Life expectancy of railroad employe was 20.64; he had 4th grade education and earned $6,223 per year. Award of $90,000.00 sustained.) Missouri Pacific Railroad Co. v. Goodson, 345 S.W.2d 569 , Tex.Civ.App., San Antonio, writ ref., n.r.e. (1961) (Award of $85,000 to 54 year old brakeman earning about $7,500 per year sustained.)
This is the first case this Court has called for a remittitur where damages found by the jury are within the pleadings and evidence since January 1, 1947, prior to which date, I am not now informed.
I respectfully dissent.
*465 Supplemental Opinion
O’QUINN, Justice.
William Barney Ham, appellee, filed a remittitur of $38,650.75 on May 21, 1970, in compliance with the suggestion of remit-titur by this Court in our opinion of May 6, 1970. The judgment of the trial court is reduced by the amount of such remittitur, and as so modified the judgment of the trial court is affirmed.
Remittitur filed.
Judgment modified and as modified, affirmed.
. As where there are multiple defendants each accused of negligence. As between such defendants the issue is proper.