G. H. S. A. Ry. Co. v. King , 41 Tex. Civ. App. 433 ( 1906 )

Appellee sued for damages, arising from personal injuries, and obtained a judgment for the sum of $18,000. We find that appellee was injured through the negligence of appellant by a defect in the drawhead of a car, by reason of which the train on which appellee was riding came asunder and the sundered cars were stopped with such violence that appellee was thrown from the cupola to the floor of the caboose. Other facts are found to exist in connection with a discussion of the fifth assignment of error.

The first, second and third assignments present as errors matters in the first paragraph of the charge of the court. The first error presented is that the court did not submit to the jury the issue of negligence alleged in the petition. The petition set forth that appellee was a conductor on a freight train belonging to appellant; that as the train was leaving Eagle Lake, on the night of June 20, 1903, going east, the drawhead or drawbar, or that part of the coupling apparatus which was fastened in the body or timbers of the car near the engine, pulled out, and the air was thereby set on the rear part of the train, and it was brought to a sudden, violent, and unusual stop; and that appellee, who was in the act of ascending to the cupola of the caboose, was hurled violently to the floor of the caboose and injured. The court instructed the jury that if they believe appellee was a conductor and on a freight train that was leaving Eagle Lake, and that the drawbar on one of the cars near the engine pulled out, and that the pulling out of the drawbar set the air on the rear part of the train, and it was thereby brought to a sudden and violent stop, and that appellee was at that time in the act of ascending to the cupola of the caboose, and was thrown forward and injured as alleged in the petition, etc., then the jury should find for appellee. We do not see any variance between the issues raised by the petition and those presented to the jury by the court. The second objection is that the court assumed that appellee was hurled to the floor, and that objection is not supported by the record. It might, without error, have assumed that fact as the evidence on that point was uncontradicted.

Another objection is that the court authorized a recovery by appellee, if the rear end of the train was brought to a sudden and violent stop, regardless of whether the stop was an unusual one under the circumstances. The court made the liability hinge on proof that the sudden and violent stop was produced by the negligence of appellant, and proof of such negligence was sufficient whether such negligence usually produced such results or not. The charge on the measure of damages is attacked on the ground that it permits a double recovery. The charge is one in its substantial features often approved by the Appellate Courts. It does not authorize a double recovery of damages, and could not have misled a jury.

The fifth assignment is made the medium through which it is urged that "the verdict and judgment are contrary to law, and against the overwhelming weight of facts, in this, they are grossly and unconscionably and palpably excessive, and manifest passion, perjudice, and improper motive on the part of the jury, in this, that the overwhelming weight of the facts showed that at the time of the accident, plaintiff received nothing more than temporary and comparatively slight injuries from which he entirely recovered in a few weeks, and it is also palpably plain from the evidence that plaintiff did not sustain any serious or permanent injuries, and that he is not now suffering from any permanent injuries, but is guilty of fraud and deceit and malingering." We gain from this long proposition that the only ground of complaint against the verdict is that it is excessive, and a review of the testimony offered by appellee on the effects of the injury will be made. Appellee testified that he was born in April, 1864, and was hurt on June 20, 1903, and consequently was 39 years old at that time. His average wages were $150 a month. At the time the accident occurred appellee was ascending to the cupola of the caboose, when the drawhead of a car pulled out at a point near the engine, and the air was thereby thrown on about 50 freight cars, that had become disconnected from the engine, with such violence that appellee, who was 6 or 7 feet from the floor was thrown with great violence to the floor at the end of the car, a distance of 15 feet. His head struck the end of the car, and he was unconscious for 10 or 15 minutes. He was confined for four months to his bed and it was seven or eight months before he could walk out of the house. One of his shoulders was knocked down so that it is two or three inches lower than the other, and he can not lift anything with that arm, and he constantly suffers with pain in the left side. His hearing has been greatly affected, and blood flowed from his ears for three or four months. He suffers greatly with nervousness and rests poorly at night. He is unable to walk for any great distance, and has heart trouble, and has no strength in the right side and arm. It was shown by physicians that appellee's pulse and heart rate and temperature were abnormal, that the spine had been fractured, that there was bleeding from the left ear and that his blood circulation is bad, and that he is permanently disabled and will always suffer. That there is partial paralysis of the muscles of the right arm, and his bladder is in a deranged condition. There was also evidence as to adhesions of the colon and spleen to each other and to the side. Dr. Morse, a specialist in eye and ear treatment, testified to the impaired condition of appellee's hearing. It was shown that appellee was a strong, healthy man, in full possession of all his senses before the accident. We can not, in view of the foregoing testimony, hold that the verdict is excessive. If as stated by appellants, plaintiffs in trial courts are permitted to argue to juries that they should render verdicts "for the very highest amounts" and that the courts can correct any excess, and especially if it was so argued in this case, such argument should be made the subject of bills of exception and the Appellate Court would find a way to protect appellants from the effect of such arguments. There is nothing in this case that shows that such an argument was made. The judgment is affirmed.

Affirmed.

Writ of error refused.