The opinion
On Motion for Rehearing.
The evidence indicates, we think, clearly that appellee was fully apprised of the danger of permitting the wounded eye to remain as it was and the probable effect on the other eye. He consulted several eye specialists, had his eye examined with the X-ray, and consulted Dr. Beck as to the course he should pursue. He testified: “I went to Dr. Beck for his advice in regard to my eye, what he thought about it, whether he thought it was going to have to be removed or not.” Dr. Beck testified that, if the injured eye was not removed, the other eye would probably be lost. Shall we presume that when he was consulted about removing the eye that he did not tell appellee what would probably result if he did not remove it? If appellee had received information from the doctor to the effect that there was no danger in not performing the operation, can it be imagined that he would not have told the jury? It is inconceivable that of all the eye specialists consulted by appellee not one was honest enough to tell appellee that an operation was absolutely necessary in order to protect the uninjured eye. That he had received such information, but delayed an operation until after a trial of his case, is shown by what he told the man in Louisiana. He took the chances on losing his right eye, because an operation with its results might affect the trial of his cause.
It is stated in the motion for rehearing that appellant produced no doctor who was able to swear that an operation would save the right eye, but such testimony was unnecessary, because Dr. Beck, appellant’s witness, in effect swore to that when he said that there was a probability that appellee would lose his right eye if an operation was not performed. That statement carried with it the inseparable conclusion that the probability of loss of the right eye would be removed by an operation.
This court does not hold that a verdict for $20,000 would be excessive for the total loss of sight, and no such case is presented by the record, but a verdict for that sum has been predicated on evidence that there may be total blindness if appellee persists in not having the left eye, which was injured, removed. The verdict is predicated in part, at least, upon a presumption that appellee will not do for himself what reason and common sense demand that he should do. How much of the verdict was given on the xn-obability of total blindness no one knows, and there is no way to ascertain it. It follows that a remittitur cannot be suggested by this court.
The motion for rehearing is overruled.