29 S.W. 231 | Tex. | 1895
Frank Corley sued the railroad company for damages alleged to have been caused to his wife. Mary Corley, in a wreck on its road while she was a passenger thereon at a time when it was operated by Receivers Yoakum and Macnamara.
It appears from the findings of the Court of Civil Appeals that Mrs. Corley took passage on a train on defendant's railroad at Corpus Christi, and soon after leaving that place the car in which she was riding was derailed, and she injured seriously, according to her testimony, and slightly, as testified to by a physician who saw her soon after the accident, but who did not see her again for about two years. Other witnesses supported Mrs. Corley's statement of her injuries and the effect *434 produced thereby, among them a physician who saw her some two years after the injuries were received, who, taking her statements as to her symptoms, stated that the injuries related by her might and probably would produce the effects of which she complained.
The case was tried in the District Court, and resulted in a verdict for plaintiff Corley for $1000, which judgment was affirmed by the Court of Civil Appeals.
The plaintiff in error presents a number of objections to the judgment, but we deem it unnecessary to notice any of them except that one which is based upon the giving of the following charge:
"4. If you find for the plaintiff, in assessing the damages you may take into consideration the physical pain and suffering, mental agony, peril, fright, and nervous shock, if any, incident to her injuries, and assess such sum as you, in the exercise of a sound discretion, will determine as a proper compensation therefor."
It is claimed that the foregoing charge authorized the jury to find damages for "mental agony" and for "peril and fright," giving double damages to the plaintiff for the mental anguish, the others being included therein. Upon the application for writ of error, this court granted the writ upon that view of the case as it was then presented.
Looking at the charge alone, it would seem to be susceptible of that construction, and if so construed by the jury and damages given for "mental agony" and for "peril and fright," separately, it would be an error for which the judgment must be reversed. Railway v. Porfert,
Fright and peril unaccompanied by any injury to the person will not sustain an action for damages. Railway v. Trott,
Defendant asked the court to give the following charge, which the court gave to the jury:
"Should you find for the plaintiff, you may, in assessing damages, consider the mental and physical pain, if any is shown by the evidence, suffered by plaintiff's wife, but you can only consider such mental and physical pain as you may find from the evidence resulted to plaintiff's wife from the injuries, if any, received in the derailment of the car upon which she was traveling," etc.
Taking this charge and others given at defendant's request, in connection with the charge given by the court, the jury must have understood that mental suffering included "fright and peril," for it is evident *435 that defendant's counsel so understood it at the time; otherwise, while writing the above charge, they would have asked the court to limit the charge complained of in this respect, as well as in the points indicated by the special charge.
There is no serious conflict in the evidence as to the character and extent of the injuries, except between Dr. Graves and the plaintiff's wife. According to Dr. Graves' evidence the injury was slight, but he saw her only twice, and that recently after the injury; while another physician who saw her two years after that states, that the complaints then made indicated such symptoms as might have been the result of the injuries claimed to have been sustained.
We think that from the whole case it is reasonably certain that the jury did not give double damages to the plaintiff for"mental anguish," by adding thereto damages for "fright and peril." The verdict is moderate, considering the injury and the state of peril in which the lady was placed, for it is legitimate to consider the fright, alarm, or mental anguish she might have suffered by reason of her perilous position, in which she suffered injury to her person, all of which was caused by the negligence of the defendant.
There is no error in the judgment of the Court of Civil Appeals, and it is therefore affirmed.
Affirmed.
Delivered January 21, 1895.
DENMAN, Associate Justice, did not sit in this case.