Chicago, R. I. & G. Ry. Co. v. Pemberton

• Decision Date: 10 October 1914
• Docket Number: (No. 6843.)
• Citation: Chicago, R. I. & G. Ry. Co. v. Pemberton, 170 S.W. 108 (Tex. App. 1914)
• Parties: CHICAGO, R. I. & G. RY. CO. v. PEMBERTON.
• Court: Texas Court of Appeals

170 S.W. 108

CHICAGO, R. I. & G. RY. CO. v. PEMBERTON.

(No. 6843.)

Court of Civil Appeals of Texas. Dallas.

October 10, 1914.

Rehearing Denied October 24, 1914.

Appeal from District Court, Dallas County; J. C. Roberts, Judge.

Action by Henry Pemberton against the Chicago, Rock Island & Gulf Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 155 S. W. 652; 161 S. W. 2; 168 S. W. 126.

Lassiter, Harrison & Rowland, of Ft. Worth, and Bennett Hill, of Dallas, for appellant. W. L. Crawford, Jr., and Carden, Starling, Carden & Hemphill, all of Dallas, for appellee.

RAINEY, C. J.

While Pemberton was helping to unload a car which was standing on a side track of appellant at Irving, Tex., appellant moved another car against said car, which caused appellee to fall from the wagon and personally injure him. He brought this suit for damages, and upon a hearing he recovered judgment for $3,500, and the appellant prosecutes this appeal.

There are four assignments of error presented by the brief, which are, in effect: (1) That the verdict is excessive; (2) error in refusing a special charge; (3 and 4) error in the refusal of the court to appoint physicians to examine the plaintiff's injuries.

At a former term of this court we refused to consider the assignments of error and affirmed the judgment. 155 S. W. 652. The Supreme Court granted a writ of error, and remanded the cause to this court for a consideration of the first assignment of error, holding, in effect, that we were in error in not considering it. 161 S. W. 2. The Supreme Court further held, in effect, that the statements under the other assignments were defective in failing to comply with rule 31 (142 S. W. xiii), and the consideration thereof was within our discretion, but, as there were no objections raised by the appellee, this court would have been warranted in considering them. It is intimated that our ruling in this case was technical. We did not so intend it to be. We have always tried to dispose of cases without resorting to technicalities knowingly, and, as it is within our discretion to pass upon the said assignments without infringing the rules adopted by the Supreme Court for the guidance of this court, we will consider them. We will now consider the various questions arising under the presentation of the case by appellant.

The first assignment presented is, in effect, that the verdict of the jury for $3,500 is excessive, and the proposition presented is that:

"A fair consideration of the evidence in this case shows that the plaintiff's injury was inconsiderable, and that the verdict is grossly excessive."

The law contemplates that when a party is wrongfully injured he is entitled to such damages as will justly and adequately compensate him. No definite rule for arriving at the amount of compensation is fixed, but the law has left it to the determination of a jury after a fair and impartial hearing of the case. This discretion of the jury will not be disturbed by an appellate court, unless there appears something in the record to show that it was influenced by passion or prejudice on the part of the jury. We have examined the record, and are unable to find anything that was calculated to arouse passion or prejudice in the minds of the jury. A careful scrutiny of the evidence, we think, will show that it was sufficient to warrant the jury in assessing the amount of damages it did. There was evidence, which the jury were authorized to believe, that plaintiff's knee was injured; that it was inflamed; that the synovial fluid had been extracted therefrom, the loss of which caused a stiffness of...