Galveston, H. & S. A. Ry. Co. v. Hynes

• Decision Date: 05 April 1899
• Parties: GALVESTON, H. & S. A. RY. CO. v. HYNES.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 624

50 S.W. 624

GALVESTON, H. & S. A. RY. CO. v. HYNES.¹

Court of Civil Appeals of Texas.

April 5, 1899.

Appeal from district court, Medina county; I. L. Martin, Judge.

Action by H. W. Hynes against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Baker, Botts, Baker & Lovett, for appellant. Perry J. Lewis, for appellee.

FLY, J.

Appellee instituted this suit to recover damages incurred by him through personal injuries inflicted by appellant. A trial by jury resulted in a verdict and judgment in favor of appellee for $18,000. We find as facts that appellee was in the employment of appellant, and while in discharge of his duties as night watchman in the yards of appellant in San Antonio, on the night of May 13, 1898, he was struck by a car that had been negligently thrown by a flying switch on a repair track, and received injuries which resulted in the loss of a leg below the knee, and in the permanent damage of the remaining foot. The injury resulted from the negligence of appellant. The suffering from the injuries was intense, and up to the time of the trial appellee was suffering great pain in his foot. Before the injuries were received, appellee was in robust health, was 41 years old, and was receiving at the time $45 per month, but had at a previous time received $55.30 from appellant. Since the injuries were inflicted, appellee has been totally incapacitated for physical labor, and his injuries are permanent. It was established by the evidence that a switch engine on the main track had two freight cars (one being a box car, and the other a flat car) in front of it, and four box cars behind, attached to it, and that it ran at a great rate of speed, pushing the two cars and pulling the four cars, until it reached a point near the repair track, when the cars behind were detached from the engine; and, after the engine, which ran away from the cars, had passed the switch to the repair track, the switch was thrown, and the four cars ran on the repair track, and without warning to appellee ran over and crushed his limbs. He had seen the engine with the two cars in front passing along the main line, and had no notice that cars were behind, which, by a flying switch, were to be thrown on the repair track. There was no light on the car that struck appellee, nor any one to give notice of its approach. It was not customary to make flying switches, with cars in front of the engine. This statement of the evidence answers the charge in the seventh assignment of error, that appellee was guilty of contributory negligence, and leads to the conclusion that appellee was not guilty of contributory negligence, and that the assignment is without merit.

The only other point insisted upon by appellant is that the verdict is excessive; and in this connection it is insisted that the rule established by former decisions of courts of this state, that a verdict will not be disturbed on the ground of excess, unless it appears that it was the result of passion or prejudice, has been abrogated by article 1029a, Rev. St. Prior to the adoption of the article in question, it was the rule in Texas to reverse a case when a verdict was found to be excessive in amount, and the act of 1893, being the article above cited, was enacted to give authority to courts of appeals to suggest a remittitur of the excess, and, in the event it was made, to affirm the judgment. Railway Co. v. Syfan, 91 Tex. 562, 44 S. W. 1064. In discussing, in the above-cited case, the law in question, the supreme court said: "This article was doubtless intended to have, and clearly does have, the effect to abrogate the rules established by the former decisions of this court upon the question under discussion, at least so far as applicable to the court of civil appeals." The rules referred to are those that had been fixed by the supreme court, to the effect that, "in actions for damages where the measure of recovery is not fixed by law,...