East Line & Red River R. Co. v. Boon

• Decision Date: 29 October 1886
• Parties: EAST LINE & RED RIVER R. CO. v. BOON.
• Court: Texas Supreme Court

1 S.W. 632

EAST LINE & RED RIVER R. CO. v. BOON.

Supreme Court of Texas.

October 29, 1886.

Action for personal injuries. Plaintiff had judgment below, and defendant appeals.

John B. Eddins, for appellant.

GAINES, J.

This is a suit by appellee against appellant to recover damages for personal injuries alleged to have accrued to appellee by reason of his being rudely treated and thrown from appellant's train by the conductor and other employes of the company while he was a passenger thereon. He recovered a judgment in the court below for $1,000 actual damages, and $500 vindictive damages, which latter were remitted after judgment. The error assigned is the overruling of the motion for new trial, which is based upon the grounds that the verdict of the jury is contrary to the law and the evidence, and that since the judgment appellant had discovered new and material testimony. In regard to the first ground of the motion, it is sufficient to say that appellee and three other persons testified for plaintiff as eye witnesses of the whole or parts of the transaction, and that the same number testified in like manner on behalf of appellant. The testimony was conflicting not to say contradictory. The statement of each of appellee's witnesses is fairly consistent with that of the others, and all support appellee's case. The testimony of appellant's witnesses is equally consistent, and, if believed by the jury, would have defeated the action. We must infer from the verdict that the jury believed the former, and must hold that it was not error in the court below to refuse to set aside the judgment upon the motion for a new trial.

To that part of the motion which is based upon newly-discovered evidence, there is a fatal objection. The testimony of which appellant sought to avail itself is to the same effect as that of the witnesses introduced upon the trial. It does not appear that the witness knew any fact tending to support the general conclusion sought to be established by appellant that had not already been testified to by its other witnesses. The newly-discovered evidence was, therefore, cumulative. Railroad v. Forsyth, 49 Tex. 171; Wolf v. Mahan, 57 Tex. 171. Nor can it be said that it would probably change the result of the suit upon another trial. But it is insisted the evidence is not sufficient to support a verdict for exemplary damages, and hence that it was misleading to give a charge upon the subject. If appellee's witnesses are to be believed,...