155 S.W. 672 | Tex. App. | 1913
This suit was brought by S. J. Young, appellee, to recover from appellant, the Artesian Belt Railway Company, damages in the sum of $40,000 for personal injuries alleged to have been suffered by him while a passenger on appellant's road by reason of the wreck or derailment of one of its cars upon which he was riding. Verdict and judgment were for the appellee for $15,500 and costs.
Appellant's first and second assignments of error assail the action of the court in excluding the evidence of appellant's treasurer to the effect that soon after appellee's injury, and long before the trial of the cause, he had approached appellee's *673
attorney and requested permission to have appellee subjected to a physical examination by physicians of appellant for the purpose of ascertaining the character and extent of his injuries, with a view to settling the claim. Appellant contends that this ruling of the court was error because such evidence was admissible upon the theory that appellant was entitled to have the fact of appellee's refusal to submit to an examination go to the jury to be considered by them in determining upon the credibility and sufficiency of the testimony upon which he sought to recover. The following cases are cited to support this assignment, and the rule as laid down is, in cases where the facts are in accord, established: Railway v. Cluck,
The record in the present case also shows that upon the trial, while appellee was on the stand, he was asked whether or not he would then agree to submit his person to an examination by a committee of physicians appointed by the court, whose duty would be to ascertain and report his condition. He answered that so far as he was concerned he had no objections to the examination, but that he would be guided by the advice of his attorney. Appellant's leading counsel then, at the conclusion of appellee's evidence, "in open court, in the presence and in the hearing of the jury, asked counsel for appellee to advise or permit the appellee to be examined by a board of three disinterested physicians, to be agreed upon by counsel for both parties." Counsel for appellee then and there refused to permit the appellee to be so examined. Appellant's complaint is that it had not the benefit that the evidence of appellee's refusal to submit to examination would have had upon the jury. It appears to us that no more forceful or impressive way could have been devised to impress upon the minds of the jury that appellant was not willing to rest his cause upon the opinion of outside experts than that adopted by counsel in this case. Instead of the evidence of an employé of appellant, whose statements might have been disputed, they had the personal, visible demonstration before them, than which no evidence could be stronger. Therefore the error of the court in excluding Mr. Howard's evidence upon this point, if error, was harmless. The first and second assignments are overruled.
Appellant's third assignment of error, which attacks the judgment as excessive, is not so presented as to enable this court to give it consideration. It is not sufficient to assign, in a general and abstract manner, that the court erred in not granting a new trial because the verdict of the jury was grossly excessive, unreasonable, and unsupported by the evidence." City v. Devlin,
The judgment is affirmed.
