H. & G. N. R. R. Co. v. Miller

| Tex. | Jul 1, 1878

Roberts, Chief Justice.

This case having been previously submitted, and being examined, was, at this term, referred back to counsel for further examination, and reference to authorities upon questions propounded in making the reference, which have been responded to by counsel .011 both sides in a manner to deserve the commendation of the court, and to enable us readily to decide the case. Such candor as that exhibited in appellant’s supplemental written argument," in fairly presenting the law, with reference to authorities, and in not seeking to press upon the court those points that are clearly untenable, so as to present the case upon its true merits, if more generally adopted, instead of the too prevalent habit of contending for everything on all points, would meet with full appreciation, and, before any intelligent court, would not incur any risk of having its proper influence in the decision of the case.

The charge of the court has been closely examined; and, without going into a criticism of its parts, it will suffice to say, that, taking it all together, it cannot be held to be unfavorable to the defendant, as it must have been understood by the jury. It is unnecessary to consider, in reference to the facts of this case, to what qualifications the first charge might be subject upon a different set of facts, or whether or not the third charge did not require more to be proved by the plaintiff, on the subject of negligence, than would often be necessary for. a parent to maintain an action for damage done to his minor son, employed by a railroad company without his knowledge or consent. The general remarks of the charge, about the duty of a railroad company to keep proper engines, officers, and railroad tracks, were correct in themselves, though unnecessary; but it is not thought that they could have had any improper influence on the jury.

There was no controversy about the facts, except in regard to the manner in which the injury was inflicted; and upon that, the evidence was conflicting, and hot of such character as that we could hold that it was not sufficient to sustain the verdict, under the law' as charged by the court.

The main question that we have had any hesitation upon, is the proof of damages. The medical bill seems to be high, and so do the charges for the expenses of the family and loss of wages during the confinement of the son from the injury. But they were claimed in the amended petition, and there seems to have been no effort to controvert the proof of them as it was made on the trial, so as to reduce them. The fact. that the jury found less than was claimed, by a few hundred dollars, shows that' they properly considered the subject; and though it might seem to us that they might reasonably have been less, still the fact that the plaintiff' and his wife had to leave home, and go to Houston, and remain there to nurse and take care of their son, necessarily made their expenses greater than if then’ son could have been attended to under other circumstances, which were matters for the consideration of the jury.

The items of charge made in the petition, and proved on the trial, were such as have been held to be proper in a damage. suit of this kind, to wit, “ loss of service of the son until the age of twenty-one years, expense of medical attendance and of nursing, and such other expenses as are rendered necessary by the injury.” (Oakland R. R. Co. v. Fielding, 48 Penn., 327.)

The damages awarded are not so excessive as to raise the presumption of any unfairness or prejudice in estimating them, under the evidence before the jury, which was not objected to, and which there was no effort to rebut, on the part of the defendant, on the trial.

. Judgment is affirmed.

Affirmed.