Missouri, K. & T. Ry. Co. of Texas v. Lee

• Decision Date: 01 May 1909
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. LEE.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

119 S.W. 144

MISSOURI, K. & T. RY. CO. OF TEXAS v. LEE.^†

Court of Civil Appeals of Texas.

May 1, 1909.

Rehearing Denied May 15, 1909.

Appeal from District Court, Hunt County; T. D. Montrose, Judge.

Action by R. B. Lee against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remitter.

Coke, Miller & Coke and Templeton, Craddock, Crosby & Dinsmore, for appellant. Looney & Clark, for appellee.

BOOKHOUT, J.

On December 3, 1907, R. B. Lee brought suit against the Missouri, Kansas & Texas Railway Company of Texas to recover damages for personal injuries alleged to have been sustained by him on October 27, 1907, in a collision between one of defendant's passenger trains, on which he was riding, and one of defendant's engines. The defendant pleaded the general issue. The case was tried before a jury, and on June 25, 1908, a verdict was returned in favor of the plaintiff for $25,000, and judgment was entered accordingly. Defendant's motion for new trial having been overruled, it perfected an appeal to this court.

This appeal presents but one contention, i. e., that the verdict and judgment are excessive, and for this reason the trial court erred in overruling appellant's motion for new trial. Appellee at the time of injury was 27 years of age. He was raised on a farm until he reached his majority, living principally with his brother at Caddo Mills, Hunt county, Tex., but a part of the time with his brother-in-law in or near Hobart, or Sentinel, Okl., and he has resided at one or the other of these places all his life, with the exception of five months, when he worked for a railroad contractor at Ft. Worth, Tex., and Independence, Mo., beginning at Ft. Worth and being sent to Independence by the same contractor in the same business. The character of work appellee had done during his life was: (1) All kind of farm labor; (2) working in meat markets; and (3) clerking in dry goods stores. As to his earnings, the evidence shows that in 1905 he made above expenses the sum of $600, that thereafter, up to the time he was injured, he had made substantially $50 per month, with the exception of a few months when he worked sometimes for a smaller and at one time a larger amount, and he could always readily secure employment either in a meat market, dry goods store, or at other honorable and remunerative work. His earnings had increased from about $18 per month on a farm in the year he became of age to $50 per month as a dry goods clerk the year he was injured. His injuries consist of the loss of the greater part of the left foot, and the remaining part is still sore, not healed up, and painful, eight months after the accident; the little toe of the other foot was partially cut off, so that it hung by the skin, and, although replaced, causes pain when walking for any great length of time; that his arm which he used the most has become numb and deadened and smaller than the...