Houston & T. C. R'Y Co. v. Boehm

• Court: Texas Supreme Court
• Writing for the Court: STAYTON
• Citation: Houston & T. C. R'Y Co. v. Boehm, 57 Tex. 152 (Tex. 1882)
• Decision Date: 30 May 1882
• Docket Number: Case No. 4667.
• Parties: HOUSTON & T. C. R'Y CO. v. JULIUS BOEHM.

57 Tex. 152

HOUSTON & T. C. R'Y CO.

v.JULIUS BOEHM.

Case No. 4667.

Supreme Court of Texas.

May 30, 1882.

APPEAL from Robertson. Tried below before the Hon. W. E. Collard.

The opinion states the case.

Beall & Kemp, for appellant.

Hamman & Adams, for appellee.

STAYTON, ASSOCIATE JUSTICE.

This action was brought to recover actual damages for injuries alleged to have been received by the appellee while a passenger on the appellant's cars.

The injuries alleged were painful, serious and permanent, and were charged to have been caused by the failure of appellant to keep its road in proper repair; by the negligent and unskillful management of its train, and by its negligence in permitting a “switch” at the place where the injury was received to become and remain out of order and in dangerous condition.

There was a trial, and judgment in favor of the appellee for $5,000.

There is no question raised in this court as to the matters of negligence under which it is claimed that the injury was received, and we will only consider such questions as are raised by the assignments of error and as are relied upon in brief for appellant.

The first assignment of error relied upon is as follows:

“The court erred in refusing the following instructions asked by defendant: “If the jury find for the plaintiff you will consider whether, under the evidence, plaintiff's ability to labor was diminished by the injuries received. If you so find, you will allow the plaintiff an amount for compensation equal to the difference between what the plaintiff could earn before, and what he can earn now in consequence of said injuries for the length of time said plaintiff was so prevented from work by said injuries. The above rule for estimating damages you will consider in connection with such damages as you may allow plaintiff for pain and suffering under foregoing charges.'

In his petition plaintiff claimed compensatory damages for personal injuries; physical pain; mental anguish; serious impairment of health, and permanent disability.

On the measure of damages the court charged the jury as follows: ‘If you find for plaintiff you will find such actual damages as the evidence shows he has sustained by the injuries and hurts proved to have been inflicted by the acts complained of on the part of defendant, and which were occasioned through their negligence; that is, the value of the time lost by the plaintiff during the time he was incapacitated from work or labor, if any, taking into consideration the nature of his business and the value of his services in conducting the same; also a fair compensation for the physical and mental suffering you find the injuries caused, and the probable effect of the injury in the future upon his health for the length of time said plaintiff was so prevented from work by said injuries. The above rule for estimating damages you will consider in connection with such damages as you may allow plaintiff for pain and suffering under foregoing charges.’ 'DD'

The instruction given by the court presented fairly to the jury the several elements or basis for damages set out in the pleadings, and to which the evidence related, and this would have been a sufficient reason for refusing the charge asked. But the charge was properly refused for the reason that it would have tended to limit the appellee's recovery for all injuries received to a recovery for only a part of the injuries made the basis of his claim, the impropriety of which is well illustrated by this case.

The charge as asked would have restricted the appellee's right to recover to such damage as would compensate him for pain and suffering, and for the “difference between what the plaintiff could...