69 Tex. 556 | Tex. | 1888
This suit was brought in the court below by defendant in error against plaintiff in error to recover damages for personal injuries alleged to have occurred
5. “Because the verdict of the jury is contrary to the law and evidence in this: That all the evidence shows that the accident was caused by some malicious person removing the taps, nuts, bolts and spikes from the rails, and that these acts and doings threw the train from the track.”
3. “Because the verdict of the jury is grossly excessive, in this: It was shown that immediately after the accident, the plaintiff, Lizzie Lee, was attending parties or dances in the neighborhood in which she lived, and participated in all dances, and remained at some as late as one o’clock a. m.”
An outline of the evidence bearing upon the fifth assignment, is as follows: The plaintiff proved that she was a passenger on the regular passenger train of the defendant company which went north from Houston on the night of the thirteenth of November, 1884, and that she had purchased a ticket; that just before reaching Clear creek, about two miles south of Hemp-stead, six of the cars left the track, and that upon which she was traveling was thrown down the embankment, whereby she received serious personal injuries. Testimony was also introduced by her in chief tending to show that at the time the accident occurred the train was running at a high rate of speed, and that at the point where the cars were thrown from the track, the ties were rotten and the road bed in an unsafe condition. The defendant, on the other hand, introduced witnesses who swore that its road bed at the place of the accident was in a safe condition; that the ties were sound and laid with first class heavy steel rails, and that its employes in charge of the train, were careful and competent men. Several witnesses, some of whom were employes, and were passengers on the train, also testified that the train was not running dangerously fast. There was also evidence tending to show by the time which had been consumed in running from Houston and intermediate stations to the place of the accident, that the rate of speed was but little if any, in excess of schedule time of trains making that trip. The cars left the track on the right side, and the first rails which were displaced, counting from the south, were carried down the embankment by the rear coaches and
In rebuttal plaintiff introduced witnesses who testified, that at and before the accident the cars were running at a very high rate of speed, so much so as to cause a remark among the passengers and to greatly alarm at least one of them. Other witnesses swore that many of the cross ties where the cars left the track-were rotten, and that, though they attempted to make a fire out of them they would not burn. It was also testified that spikes were pulled from the crossties with the hand; and one witness swore that he forced a spike into a tie with his hand alone to the depth of three or four inches.
As to the condition of the ties and the rate of speed, a large number of witnesses were examined on both sides, and their evidence was very conflicting. Upon the other points there was no important conflict in the evidence. It is sufficient to say, however, that notwithstanding the conflict, there was ample testimony to sustain the verdict of the jury upon the questions of the safety of the road bed and the rate of speed; and the verdict can not be set aside, unless the defendant has shown that the accident was caused by the malicious act of some third person. It must be conceded that upon this point it has made a strong ca,se. If the nuts, bolts and. bars were those used to connect the rails where they were detached, it is difficult to account
It is not necessary for us to say what our conclusion would be as to the facts if called to pass upon them in the first instance. Where there is not sufficient evidence to sustain a verdict, this court will reverse the judgment; but if there be sufficient evidence, it can not interfere merely because we think the weight of the affirming testimony is against it. It is only when the verdict appears clearly wrong that this court can set it aside upon the sole ground that it is against the weight of the evidence. The verdict in this case is not clearly wrong, and therefore the fifth assignment of error is not well taken.
We are also of the opinion that the damages are not excessive. It is true that some four months after the accident the plaintiff attended parties and danced; but she testified that she found, after two or three experiments in this way, she suffered so much in consequence that she had been compelled to desist altogether. There was evidence to show that when the car was hurled down the embankment she was stunned and rendered unconscious, and that her ribs were broken and her spine injured. She was under medical treatment for many weeks, and though she has been able to go about, she has never been restored to health. Before her injuries she assisted her father in the field, picking cotton and hoeing, and did house work and washing. Since, she had been able to do no work. There was evidence tending to show that she was injured internally, and that a uterine trouble was produced. It was shown that she suffered at intervals of about six weeks pains resembling those of child birth, and that at such times her limbs became swollen. These attacks continued to return until the time of the trial. The company sent a physician in their employment to examine into her injuries. She answered freely all his questions and submitted to a personal examination as far as modesty would permit. He was placed upon the stand by defendant, but was not examined
We find no error in the judgment, and it is áfBrmed.
Affirmed.
Opinion delivered January 31, 1888.