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

• Decision Date: 21 April 1910
• Citation: 127 S.W. 1164
• Court: Texas Court of Appeals
• Parties: CHICAGO, R. I. & G. RY. CO. v. SWANN.<SMALL><SUP>†</SUP></SMALL>

127 S.W. 1164

CHICAGO, R. I. & G. RY. CO. v. SWANN.^†

Court of Civil Appeals of Texas.

April 21, 1910.

Rehearing Denied May 12, 1910.

Appeal from District Court, Tarrant County; Mike E. Smith, Judge.

Action by John Swann against the Chicago, Rock Island & Gulf Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition of remittitur.

N. H. Lassiter and Robert Harrison, for appellant. Capps, Cantey, Hanger & Short, for appellee.

WILLSON, C. J.

This appeal is from a judgment against appellant and in favor of appellee for the sum of $13,000 as damages for personal injuries suffered by his wife as the result of a collision between two of appellant's trains, on one of which she was riding as a passenger. That the collision was due to negligence on the part of an employé of appellant was admitted. The issue was as to the amount of damages appellee was entitled to recover.

We cannot say that the trial court abused the discretion the law conferred upon him (Rev. St. 1895, art. 1371, as amended; Gen. Laws 1905, c. 18) when he refused to grant appellant a new trial on the ground that the jury had been guilty of misconduct, in that they had reached their verdict by lot. The testimony offered by the parties on the question made by the motion was sufficient to support the court's finding that the verdict was not so reached. The assignment complaining of the action of the court in the particular stated therefore is overruled.

Appellant insists that the trial court erred in refusing to grant it a new trial on the ground set up in its motion that the verdict of the jury was excessive. At the time she suffered the injury complained of Mrs. Swann was about 37 years of age, and, notwithstanding she was the mother of eight children and had suffered one miscarriage, was enjoying and had always enjoyed good health, and had always been able to do and had done the cooking, sewing, washing, ironing, etc., for the family, consisting of herself, her husband, and their children. As a result of the collision of the train she was riding upon with another train the shin of her right leg was scratched and bruised, her hip was bruised, and she received a blow on the back of her head severe enough to produce a knot thereupon. She did not then realize that she had suffered other injuries, but on the next day found it necessary to take to her bed, where she remained several days under treatment of a physician, called in on the third day after she received the injuries. Off and on from that time until the date of the trial, which occurred about 26 months later, she had been confined to her bed for periods ranging from a day or two to two weeks at a time, and had suffered from pains in her leg, back, and head. Her monthly periods became irregular and painful, an ovary and her womb had become displaced, she occasionally suffered from a little fever, her pulse at times ran from 132 to 140, when it should not have exceeded 75 to 80, she was troubled with insomnia, she suffered from a twitching or jerking of the muscles of the face, and she lost 15 or 20 pounds in weight. Two physicians testifying for appellee each stated that the condition of Mrs. Swann's health after she suffered the injuries was due to traumatic neurosis, which one of them defined to be an injury causing a functional disturbance of a nerve or nerves, and which, he said, as a rule "gradually grows worse, and in a majority of cases the result is paralysis." The same physician testified that only about 50 per cent. of the number of persons suffering from traumatic neurosis recovered, and that, in view of the fact that Mrs. Swann had suffered with it for two years, he did not think she would recover. The physician referred to seems to have been the one in charge of the case during the time intervening between the accident and the trial. The other of the two physicians referred to on three different occasions had been...