No. 2715 | Tex. App. | Jan 10, 1890
Appellee instituted this suit against appellant and the Southern Pacific Company, both railway corporations, to recover damages.
Plaintiff charges that he was a passenger on a train being operated by the Southern Pacific Company when it came in violent collision with a locomotive engine obstructing the track, causing the car in which he was riding to be derailed and wrecked; that in order to avoid the apparent danger of being crushed in the wreck, he jumped from the wrecked car and was, without fault on his part, permanently injured by having his .ankle terribly wrenched and sprained.
The petition alleges that the obstruction of the track was caused by the servants of appellant, who negligently pushed, the obstructing engine so near the track over which plaintiff was being transported as to cause the collision, and that the Southern Pacific Company .was guilty of negligence in failing to discover and remove the obstruction before the arrival of the colliding train.
Among other defenses, the Southern Pacific Company pleaded that plaintiff’s injury was caused, solely by the gross negligence of its codefendant, and it-prayed that if any judgment was rendered against it in favor of plaintiff, that judgment over be rendered in its favor against its co-defendant for the amount of such verdict.
Appellant excepted to the answer of its codefendant seeking judgment over, upon the grounds that it was not a plaintiff, and not entitled to such relief in this proceeding.
It is contended that the court erred in overruling this exception, but it is not stated in what the error consisted; and we can see no satisfactory reason why such relief may not be administered, if the evidence shall justisfy it.
The jury returned a verdict reading: “We the jury find for the
Upon this verdict the court rendered judgment in favor of plaintiff «gainst appellant for the amount specified in the verdict, and discharging the Southern Pacific Company with costs.
Appellant complains that the verdict is “unintelligible, indefinite, and uncertain.”
We think the objections are well taken.
Without the aid of the pleadings we think the verdict would be construed to be in favor of the Southern Pacific Company for the amount of damages given, and would not show what was found in favor of plaintiff against appellant.
As both jfiaintiff and the Southern Pacific Company pray for the same moneyed judgment against appellant, the pleadings do not remove the difficulty produced by the phraseology of the verdict.
It is true that the verdict does not show that the only contingency upon which a verdict was asked by the Southern Pacific Company arose.
It is not difficult to make verdicts express the conclusions of the jury; and while they may he liberally aided by the contents of the record, and enforced when, if so aided, there can be no uncertainty as to the intention of the jury, mere conjecture can not be resorted to. In this case we are not able to give to the verdict, aided by the pleadings or the charge of the court, a construction that will support the judgment. Moore v. Moore, 67 Texas, 297.
The other questions raised by the assignment of errors are not such as are likely to occur on another trial.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
Delivered January 10, 1890.