C.R.I. T. Ry. Co. v. Langston , 19 Tex. Civ. App. 568 ( 1898 )

I regret that I can not agree with my brothers on the opinion they present in this case. I think that the ruling of the learned district judge in refusing to require the plaintiff to unwrap and expose her wounded limbs to the company's doctors was exactly correct. It appears from the bill of exceptions that they were "surgeons of defendant and in defendant's regular employment;" that the plaintiff's counsel had previously refused to allow them to examine her upon this ground, offering, however, at the same time, "to have plaintiff examined by any number of physicians the court might see proper to appoint on defendant's application who were not in any way connected with plaintiff or defendant."

Defendant then made application to the court, and upon this application the court appointed Dr. Stinson to make the examination, refusing to appoint the company's doctors or either of them, stating that Stinson could act or not as the parties themselves desired. At this juncture, it seems, defendant's counsel placed two of the company's doctors on the stand, and requested them then and there "to examine the plaintiff and her injuries," and I infer that the aforesaid doctors were then and there about to seize the plaintiff's limbs and examine them, nolens volens, when her counsel came to her rescue, again objecting to the assault upon her by these corporation doctors, placing their objections upon the grounds (1) that they were in the employment of defendant, and were partisan and not impartial; (2) that they had not been appointed by the court to make such examination; and (3) that defendant had no right to have such examination without the plaintiff's consent, agreeing at the same time to submit herself to such examination at the hands of any other doctors considered by the court to be impartial and competent, and not in the employment of defendant.

In order to have a clear understanding of the question as it stood for decision in the District Court, at least upon the motion for a new trial, and as it stands in this court, I think it is proper to state here that the record shows that defendant accepted the order appointing Dr. Stinson to make the examination, and acted upon it, because the undisputed evidence is that, after he was appointed, defendant's counsel took him to Mrs. Langston and caused him to examine her, and then failed to put him on the witness stand, when the plaintiff herself called him as a witness and he testified fully as to the condition of her injuries and whether she would be able to wear artificial limbs or not, his evidence agreeing in the main with that of Dr. Poindexter. It is important to note, furthermore, that this effort to force an examination was not made until after the plaintiff had been twice upon the witness stand, and had testified fully and exhibited her limbs to the court and jury, and her cross examinations, partly referring to the condition of her limbs and ability to wear artificial limbs, cover ten pages of typewritten matter in the record; that it nowhere appears in the record that the company's doctors were not present during her entire examination as a witness, and had every opportunity to view and examine the injured limbs and question her fully concerning the same; that it occurred after she had closed her evidence in chief. It also appears that Dr. Poindexter had examined her limbs on the day the trial began, and it nowhere appears, nor does defendant's counsel contend, that Dr. Poindexter and Dr. Stinson were incompetent or had not made a thorough examination, or were interested in behalf of the plaintiff, or in any manner partial to her or prejudiced against the company, but they stand here as graduated, competent, and experienced physicians and surgeons, with long years of practice, without a breath of complaint against them of any character, and it does not appear that the company's doctors did not hear them testify fully describing the injuries and their condition and appearance.

I think that, under this view of the case, the court did not err in refusing to appoint the company's doctors to examine her limbs out of court. Her counsel had refused to consent to the appointment, and the court, in the absence of a statute, had no power to enforce such an order against her will. We held this, in effect, in the Pendery case cited by the majority, and the Supreme Court refused a writ of error therein. Nor did the court err in refusing to compel her to submit to an examination of the company's doctors in open court on the trial. Our Supreme Court has intimated this view on several occasions, and I think has, in effect, so decided. Railway v. Norfleet, 78 Tex. 323; Railway v. Johnson, 72 Tex. 101; Railway v. Underwood,64 Tex. 466.

In the Norfleet case, supra, Chief Justice Stayton said for the court: "Such an order should never be made, unless in a case in which the ends of justice imperatively demand it, and in no case should such an order be made when the party is willing to be examined by competent and disinterested men without such order. If, however, a court should refuse to make such an order under a state of facts that would justify it, this would not be ground for reversal, if it appeared that during the trial opportunity for such examination was given. On the trial of this case plaintiff submitted his injured limb for examination, it was examined, and there is no reason to believe that any physician or surgeon brought by appellant would have been refused an opportunity to make a full examination."

Our present Chief Justice Gaines, in the Johnson case, supra, speaking for the court, said: "If this power should be exercised at all, it should be by the appointment by the court of one or more disinterested experts, either of its own selection or such as may be agreed upon by both parties." Our brothers of the Fifth District, it seems, take the same view of the question. Railway v. Nelson, 5 Texas Civ. App. 387[5 Tex. Civ. App. 387], 24 S.W. Rep., 588. And so it has been ruled in the First. Railway v. Berling, 14 Texas Civ. App. 544[14 Tex. Civ. App. 544], 37 S.W. Rep., 1083. And our Supreme Court refused a writ of error in the latter case.

The Court of Appeals of Kentucky hold "that such examination may be required in the exercise of a sound discretion on the part of the trial court, and when it fairly appears that the ends of justice require it, and that knowledge of necessary and material facts can only be brought to light by such examination;" and that court affirmed a judgment where the lower court had refused to make such an order, because "eighteen months had elapsed from the time of the accident to the date of the trial, and it was apparent to all that the appellee was a cripple. It was an undisputed fact that he had suffered extreme and excruciating pain. His right thigh was broken, his left thigh mashed, and his body otherwise bruised and injured. An examination by the company's expert physicians, or by a commission of learned doctors, might have informed the jury of the exact nature of the trouble under which the appellee labored, and have clothed their information in the usual technical nomenclature of the profession, but the patent fact that the man had thus suffered and was a cripple could not have been explained away. In the courts where the power to compel a submission to such an examination is upheld — and it is denied in many — it is not held that a defendant has an absolute right to demand such an order, but as we have said, the motion therefor is addressed to the sound discretion of the court." Distilling Co. v. Riggs, 45 S.W. Rep., 99.

In Railway v. Rice, 144 Illinois, 227, 33 Northeastern Reporter, 953, the Supreme Court of Illinois say: "The extent to which courts have gone, sustaining the power to compel such examinations, is that such orders may be made in the sound legal discretion of the trial court, when it appears that such an examination is reasonably necessary to the attainment of justice. * * * But the ruling in this case was placed upon the broad ground that the court had no power to grant the motion, and this court is committed to that doctrine." Parker v. Enslow,102 Ill. 272; Loyd v. Railway, 53 Mo., 515.

In Railway v. Michaels, 57 Kansas, 474, 46 Pacific Reporter, 938, the Supreme Court of Kansas, while asserting the power of the trial court to compel a physical examination, denied it to the railway company in that case, because the application was not made until after plaintiff had closed his evidence, and furthermore, because no necessity was shown to exist requiring such an order.

In Stuart v. Havens, 17 Nebraska, 211, 22 Northwestern Reporter, 421, the same question arose and in almost identically the same manner as here. In delivering the opinion of the Supreme Court of that State, Justice Maxwell said: "The plaintiff below on his direct examination was asked to show his arm, which he claimed was injured by falling into the excavation, to the jury. This he did without objection, and afterwards three physicians who had treated the arm professionally testified as to its condition, without objection. Afterwards the defendant below asked the court below to make an order requiring Havens to exhibit his arm to four physicians called by him (the defendant). This the court refused to do," and error was assigned on this refusal. Discussing this assignment, the court further said: "Where, in a case like this, experts are called by a party, and permitted to make a personal examination of the person injured, and to testify therefrom, there is danger that they will feel under obligations to the party calling them, and, however honest they may be, color their testimony somewhat in his interest; while in many if not most cases their general views upon the question will be known to the party producing them before they are called. In any event, the evidence partakes somewhat of a partisan character. To avoid this they should be agreed upon by the parties, or appointed by the court, and an examination, if desired, should be made before the trial begins, although the court may permit it to be made during the progress of the trial."

The reasoning in the above case is of peculiar force here, because the bill of exceptions here shows that the company's counsel knew and were able to state to the court in advance what these company doctors would swear, for they insert in the bill these words: "Defendant could have proved by said witnesses that plaintiff could at that time wear artificial limbs without pain, and get about on them in such manner that her injuries could not be detected in her locomotion." The majority, it seems, rely upon this statement for a predicate that the evidence of these doctors would have been so favorable to defendant as to have influenced the jury in determining the amount of the verdict, and therefore, in their judgment, the excluded evidence was material.

I have no right to doubt that counsel's statement was true, and being true, it was almost sufficient in itself, in my judgment, to exclude the witnesses from testifying as experts, because an expert should come onto the witness stand without himself knowing what his evidence will be, where he is ignorant of the facts upon which his opinion is desired, as must have been the case here, to show any necessity for the examination, and to entitle appellant to raise this question at all. See also Turnpike Co. v. Baily, 37 Ohio St. 104; Railway v. Finlayson, 16 Neb. 578; Railway v. Hill, 90 Ala. 74; Shepard v. Railway, 85 Mo., 632.

I conclude, then, from the trend of the cases cited holding that the trial court would have the power to order the examination, that this power should be exercised only in cases where the facts can not be obtained otherwise and the ends of justice imperatively demand it, and not where, as in this case, the nature and extent of the injury was patent, and the limbs had been exhibited to the court and jury, and it is not shown that defendant's physicians were not present at the time. While this specific objection was not made by defendant's counsel, yet if the evidence was properly excluded for any legal reason, this court should not reverse the judgment.

But I justify the action of the court upon the further ground that the courts of this country, in the absence of a statute, have no such powers. It may be that the State, by an act of the Legislature, might require ladies in such cases to submit to such examinations in response to the imperative demands of justice, under the penalty of being denied relief in her courts; but under our Constitution such a statute would raise a serious question, and it would not be in accord with the genius of the American republic, nor with the sentiment of the people of Texas.

The Supreme Court of the United States, in the case of Railway v. Botsford, 141 U.S. 250, denied the existence of such a power in any court. Justice Gray says: "The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow. To compel anyone, and especially a woman, to lay bare the body, or to submit to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass; and no order or process commanding such an exposure or submission was ever known to the common law in the administration of justice between individuals, except in a very small number of cases, based upon special reasons and upon ancient practice, coming down from ruder ages, now mostly obsolete in England, and never, so far as we are aware, introduced into this country."

In Railway v. Griffin, 80 Federal Reporter, 282, where the physical examination of the plaintiff was asked for during the trial, Judge Woods, in delivering the opinion of the Circuit Court of Appeals, after citing Railway v. Botsford, supra, says: "The reasoning of that case forbids a compulsory examination during the trial equally with one in advance of the trial."

In Lyon v. Railway, 142 New York, 298, 37 Northeastern Reporter, 113, the Court of Appeals of New York, speaking through Mr. Justice O'Brien, shows that the power to compel a party to submit to personal examination by physicians exists only by virtue of an amendment to an article of their statute authorizing plaintiff's deposition to be taken, and after citing with approval the above language of Mr. Justice Gray, he adds: "This amendment has changed the law, but it is not so certain that it will ever change the general sentiment of mankind which was expressed in Judge Gray's remarks." See also McQuigan v. Railway (N.Y. App.), 29 N.E. Rep., 235; Roberts v. Railroad, 29 Hun, 154; Pennsylvania Co. v. Newmeyer, 129 Ind. 410.

In the Newmeyer case, supra, the Supreme Court of Indiana said: "To say that the power rests in the sound discretion of the court does not meet the case, for the real question is as to whether the power exists at all. So far as we know, the courts of this State have never attempted to exercise such a power, and we are of the opinion that no such power is inherent in the courts. We think the better reason is against the existence of such a right, and, in the absence of some statute upon the subject, we do not think the courts should attempt to compel litigants, against their will, to submit their persons to the examination of strangers for the purpose of furnishing evidence to be used on the trial of a cause. Should a litigant willingly submit, there could be no legal objection to such an examination, and should he refuse to submit to a reasonable examination his conduct might possibly be proper matter for comment, but this is quite a different matter from compelling him, against his will, to submit his person to the examination of strangers."

In Mills v. Wilmington (Del. Super. 1894), 2 Hardesty, 31, it was held that although the plaintiff had exhibited his leg for examination to physicians, he could not be compelled to expose his leg to the jury for the purpose of explanation by one of the physicians.

True, the language of Judge Gray was used in a case where the examination was sought out of court, but from the reasoning above I am led to believe, with the Circuit Court of Civil Appeals in the Griffin case, supra, that if her body was secure from the "touch of a stranger" out of court, this right of personal security would follow her even on the witness stand. And though she may have voluntarily exhibited her limbs to the jury on one occasion during the trial, there is not power enough in the American governments, State or Federal, in a controversy between herself and a private person or corporation, to lift the hem of her tattered skirt and expose her mangled limbs to public gaze, or require her to do so against her will. The right of personal security wherever the common law of England obtains is one of the absolute rights of individuals, and the pride of the Anglo-Saxon race, and in our declaration of independence we have declared it to be inalienable. She can not deprive herself of it. She can not contract it away. Nor can she by any act of hers estop herself from the right to assert it. It is the shield of her person, except against the State's right to punish her for crime whereof she is duly convicted according to the laws of the land.

I would gladly close this dissent here, but if there is any assignment in the record upon which I could agree to a reversal of the judgment it would be my duty to do so. Hence I feel compelled to discuss other assignments, in order that my reasons for not agreeing may be known.

It was proved by several of plaintiff's witnesses that none of the trainmen or other servants of defendant assisted or offered to assist the plaintiff in boarding the train. Defendant moved to exclude this evidence from the jury, because it was not the duty of defendant to furnish passengers with servants to assist them in boarding or alighting from its trains, except where they are old or infirm, or incumbered with baggage or bundles, etc., and that such evidence was calculated to mislead the jury. The court refused to exclude it, and, under the circumstances of the case, I think properly.

It seems that where the passenger is not afflicted or incumbered in some way, it is not the duty of the railway company to assist her in boarding the train or alighting therefrom. In such cases, it is only necessary for the company to stop its trains at the stations for a length of time reasonably sufficient for passengers to get off and on, of course furnishing them proper and safe facilities for doing so. When this is done, the passenger must do the rest. But plaintiff's theory was that, as it was night and the platform was not lighted, and as the train was behind time, and only stopped from three to ten seconds, — not long enough to discharge and take on the passengers in safety, without assisting them, — it was a question for the jury to determine whether, under these circumstances, it was negligence in the company to fail to assist the passengers in boarding the train on that occasion; and in that view and theory of the case, I think the evidence was competent. Railway v. Miller, 79 Tex. 78; Railway v. Finley, 79 Tex. 85 [79 Tex. 85]; 4 Elliott on Railroads, sec. 1628, and cases cited.

The twelfth assignment of error complains of the opening speech of the plaintiff's counsel, and the points raised are shown by the following statement from appellant's brief: "Judge Wilkins, one of plaintiff's counsel, in his opening argument, used the following language: `Gentlemen of the jury, this is an unequal contest, this poor woman on one side and this powerful corporation on the other. I say that the evidence shows that it is an unequal contest. Look at the array of witnesses on one side that came here for the railway company, and the number that came for Mrs. Langston. We allege in our petition that the train crew was drunk. There was enough testimony in this case to raise the issue. It don't seem to me that the men could have been sober and gave no attention to the passenger cars and passengers in the cars. It was a grave charge made upon the conductor and his underlings. They knew the charge had been made, and the attorneys of the railway company knew the charge had been made, and they didn't open their mouths about it. The man who run that engine was charged with being drunk, and didn't deny it. There were some depositions taken in this case by the notary who had testified in this case — questions propounded by the defendant and crossed by the plaintiff, and the answers written down, sworn to by the witnesses, and certified to by Mr. Collier, that never found their way into this courthouse. Who is responsible for that I do not know. I hope no lawyer in this case. It was not the proper thing to do. Gentlemen of the jury, when these depositions were taken, if it was found by anybody who had any authority in the matter that they were against the defendant, it was their duty to let them be returned to the court, filed here as testimony in this case, to be used by the plaintiff if she saw proper to use them, even if the defendant did, on those depositions, lose the case. But they disappeared. Where they went I do not know. I don't know who was responsible for them, whether it was the agents of the railway company or the notary public, and I don't believe it was the lawyers. But they are gone. Those depositions were against the defendant; otherwise they would be on file here to-day to be read to you. We were entitled to them, but we did not get them. That poor woman who sits there with her limbs cut off, helpless as she is, was entitled to those depositions to be used for whatever they were worth; but you can't get them. They are gone. Collier testified that he took them, but no explanation is made of their absence. They are unaccounted for. Nothing more is said about them by the defendant. When he testified that they hadn't been returned to the court, they didn't attempt to explain it away. Nothing more was said about it. They ought not to have done this poor woman that way; they ought to have given her a fair chance. This is almost a death struggle for her. If there is anything in her favor, let her have the benefit of it. Don't take it away. Don't rob the grave. Give her a fair show.' Which language and argument the defendant then and there excepted to in open court, as calculated to leave a false impression on the minds of the jury as to the duty and liability of the defendant, to arouse their prejudice against defendant, and elicit their sympathy in behalf of the plaintiff. Which objection the court overruled, to which ruling defendant then and there excepted, and tendered its bill of exceptions number 17."

The court, before signing, added the following explanation to this bill: "The above bill is signed with the following modification and explanation: The remarks of Mr. Wilkins contained in the first paragraph of the above bill of exceptions were objected to at the time made by Mr. Lassiter, of counsel for defendant. Mr. Wilkins objected to being interrupted. Mr. Lassiter said that he would not interrupt the speaker any more. Mr. Wilkins replied that he did not wish to be interrupted unless there was good grounds for it, but that he would thank Mr. Lassiter to call his attention to the fact that he was out of the record, if that should occur, and that he, Wilkins, would correct it. Mr. Lassiter, who followed Mr. Wilkins in the argument, discussed before the jury the remarks made by Mr. Wilkins as set forth in said bill of exceptions."

It seems, from the district judge's explanation of this bill, that he did not understand that any part of the speech was objected to except the first paragraph, which relates only to the case presenting an unequal contest, with "this poor woman on one side and this powerful corporation on the other," and to the remarks about the train crew being drunk. In support of the first statement, he said to the jury: "Look at the array of witnesses on one side that came here for the railway company, and the number that came for Mrs. Langston." The record indicates that there were about ten witnesses who testified for the plaintiff, and about twenty-six for the defendant.

The remarks about the train crew being drunk were explained by him to be based upon the fact "that the petition charged it, and that the defendant's counsel knew it, and did not open their mouths about it." His remarks show that he only inferred they were drunk, because "when on the stand they did not deny it, and because it did not seem to him that they could be sober and give no attention to the passenger cars and passengers in the cars." I am unable to see that any harm could have resulted from this part of the opening speech, and if so, it was easily answered and easily turned against the side using such assertions and inferences for argument. An advocate worthy of the name understands very well how to turn such unsupported arguments and assertions to his own advantage with powerful force, and ought to be delighted at the opportunity to do so, without troubling any court with such matters. I am very much averse to limiting counsel in their speeches to the jury, so long as they keep within the bounds of any kind of inferences which may be drawn from proven facts or from the absence of such. These attenuated, filmy inferences often establish the weakness of the speaker's cause, and ought to be gratifying to the opposing counsel, where he has the opportunity of answering them, rather than ground of complaint.

The reference to the depositions which Collier had not returned was not improper. There was sufficient evidence admitted without objection from appellant to entitle counsel to contend that they had been taken by defendant, and being unfavorable to it, had been withheld and never filed. The inference was legitimate and strong from the facts proved.

The balance of the speech, if considered as objected to, was rather in the nature of an appeal for justice and for sympathy, and was not any stronger than the facts of the case warranted. It is perfectly legitimate, in my judgment, for an advocate to magnify the wrongs which he conceives have been perpetrated upon his client by the adverse party, and appeal to the humanity and sympathy of the jury or court, — to their sense of right and justice, — aye, sweep every chord of every sentiment of the human soul until they vibrate in unison with those of the speaker. This is one of the purposes of oral argument, and to deny an advocate these rights is to violate the law of the forum, and deprive litigants of the advantages they have a right to expect from the employment of skilled, able, eloquent, or experienced lawyers.

A distinguished writer on the subject says: "The benefit of the constitutional right to counsel depends very greatly on the freedom with which he is allowed to act, and to comment on the facts appearing in the case, and on the inferences deducible therefrom. The character, conduct, and motives of parties and their witnesses, as well as of other persons, more remotely connected with the proceedings, enter very largely into any judicial inquiry, and must form the subject of comment, if they are to be sifted and weighed. To make the comment of value, there must be the liberty of examination in every possible light, and of suggesting any view of the circumstances of the case, and of the motives surrounding it, which seem legitimate to the person discussing them." Weeks on Attorneys, sec. 110. Again, quoting from the case of Garrison v. Wilcoxson, 11 Georgia, 154, he says: "Parties have a right to appear by counsel, and it is the privilege of counsel to address the jury on the facts. If the jury are to disregard the argument of counsel altogether, — if they are to shut their ears to their illustrations, comments, and reasonings, — how unmeaning, indeed, how absurd, is the appearance of counsel. It is a most valuable right to be represented by learned and eloquent counsel, not only before the court as to the law, but also before the jury as to the facts." Weeks on Attorneys, pp. 240, 241; Abbott's Trial Brief, "Counsel's Address to the Jury," p. 136, sec. 11, and cases cited. See also Railway v. Brown, 40 S.W. Rep., 612; Ferguson v. Moore, 39 S.W. Rep., 343.

The only point that can legally be made against eloquent appeals to the sympathies of the jury is that the verdict is for more than the evidence fairly sustains, and can not otherwise be accounted for; and where such is the result of such appeals, it is the duty of the courts to set aside such verdicts or reduce them to a sum sustained by the evidence. Counsel may therefore appeal to the sympathies of the jury, but at the risk of having the verdict set aside or reduced by the court, if excessive.

This brings me to the only other serious question in the case, and that is, whether the verdict is excessive. It is for $25,000, with no exemplary damages included. Is this sum more than enough to fairly compensate the plaintiff for her pecuniary loss and physical and mental suffering? I have hunted the books through for some definite rule to guide me in the solution of this question, and have found none. I do not think that the eloquent and pathetic language of counsel complained of pushed the verdict beyond the amount at which the mute appeals of her mangled limbs would have placed it. But even these mute appeals sometimes do great injustice, especially with humane and tender-hearted men, whose sympathies — all unconsciously — overcome their reason and judgment, and when this is so, it is the duty of courts to set aside or reduce verdicts found under such influences.

The highest function of a trial court is to arrive at exact justice in the particular case, but this must be attained according to the law of the land; otherwise no man could know his rights or duties. In the trial of such causes as this, where the damages claimed are unliquidated and are based, not only upon pecuniary loss, but upon physical and mental suffering as well, it is the peculiar province of the jury to assess the amount of the damages, and when assessed by them the court has no right to disturb their verdict, unless it is shown that some error has entered into the estimate, or that it has been unduly affected by some improper influence.

In Brooke v. Clark, 57 Tex. 113, our Supreme Court said: "In a case of this nature, where the actual damages may include mental suffering through life, the court can rarely set aside a verdict as excessive."

In Railway v. Porfert, 72 Tex. 353, where plaintiff had one leg broken, and was disabled for life, and had suffered twenty-one months, and his leg was not well at the trial, the court said they could not say that $14,167 damages was excessive, though large, where the trial judge had approved it, citing Railway v. Dorsey, 66 Tex. 148, and numerous other Texas cases. See also Railway v. McClain, 80 Tex. 98 [80 Tex. 98], and cases cited; 1 Suth. on Dam., 2 ed., secs. 459, 460; 3 Suth., sec. 1256, and note.

Here the record shows that the plaintiff was 37 years old at the date of the injury, was in robust health, and engaged in a business that brought her an income of from $3 to $5 per day, say an average of $1500 a year. It is shown that she is now helpless, and requires the aid of an assistant or servant all the time, and probably will the rest of her life. The proof shows that this assistant or servant will cost her from $30 to $50 per month, say an average of $500 a year. This gives $2000 a year, counting the loss of her income and what she must necessarily pay out on account of the injury. It was proved that her health had been impaired by reason of this injury, and that she had been compelled to employ physicians and buy medicines, and in all probability would have to continue to do so for years. This last item might run from $100 to $300 a year, or even more. I am not informed by the statement of facts what her life expectancy is, nor what amount would be required to purchase for her an annuity of $2000 or $2500 a year during the remainder of her natural life, if such can be obtained in this country. The statement of facts shows: "It was admitted by defendant's counsel that her injuries were permanent, and that she suffered all the pains that any person would suffer from such injuries."

Her physical suffering, the record shows, had been great and intense up to the time of the trial, a period of thirty-two months, and her back and breast, which she testified were also injured in her fall under the wheels, were paining her on the trial, as well as her limbs. One of her limbs was not then healed, and the other, though healed, was extremely tender, and the evidence tended to prove that they would never be well unless she submitted to another amputation, which would be attended with danger to her life. She was suffering pain on the day of the trial, and in all probability would continue to suffer the balance of her days. Her mental sufferings over her mutilated condition for life — dragging out a living death, as it were — can be better imagined than described.

All these facts and figures the jury had before them, and they have found an amount which at first shocks the conscience, until the injury is contemplated; but when the injury is considered, I am unable to say that it is excessive. The record fails to furnish any data which enables me to point out wherein and how much it is excessive; and hence I have finally concluded, after many consultations and much hesitation, that there is nothing in the record that would justify this court in setting it aside. The jury were certainly severe, but I can not say unjust. The district judge before whom the trial took place is distinguished for his fairness, impartiality, and learning. He heard all the witnesses testify; observed their manner; became conversant with every detail of the facts; himself saw the condition of the injured limbs, and the full effect they had produced upon the health, happiness, and life of the plaintiff, and it was his duty to see that no injustice was done the defendant, but to accord to it all of its rights under the law. He has ratified the verdict by refusing to set it aside, and I fail to see wherein we are justified in reversing his judgment.

I think the judgment ought to be affirmed.

ON MOTION FOR REHEARING.