Missouri-Kansas-Texas R. Co. of Tex. v. Anderson

• Decision Date: 07 May 1953
• Docket Number: MISSOURI-KANSAS-TEXAS,No. 3067,3067
• Citation: 258 S.W.2d 375
• Parties: R. CO. OF TEXAS v. ANDERSON.
• Court: Texas Court of Appeals

Page 375

258 S.W.2d 375

MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS v. ANDERSON.

No. 3067.

Court of Civil Appeals of Texas, Waco.

May 7, 1953.

Rehearing Denied June 4, 1953.

Naman, Howell & Boswell, Waco, G. H. Penland, Dallas, for appellant.

Clark & Fisher, Sleeper, Boynton, Darden & Burleson, Howard Walden, Waco, for appellee.

HALE, Justice.

Appellee brought this suit against appellant to recover damages on account of personal injuries inflicted upon him on July 19, 1950, when appellant's train crew, while engaged in a switching operation, caused its train to strike a box car spotted for unloading on a spur track opposite the warehouse of Bewley Mills. At the time of the collision a steel ramp extending from the warehouse to the car was down, the brakes on the car were set and appellee, an employee of Bewley Mills, was working inside the car. Appellee alleged that the train crew was negligent, among other particulars, in that they failed to give any notice or warning of danger prior to the time the approaching train struck the car and knocked it several steps down the track, tore the steel ramp and supports from the concrete side of the warehouse and knocked appellee backward in the car. Appellant admitted in its trial pleadings and by written stipulation that its train crew negligently permitted its locomotive to back freight cars onto the spur track adjoining the Bewley Mills property on the occasion in question and that such negligence proximately caused its train to strike the car in which appellee was working.

The case was tried before a jury on May 5, 1952. The jury found $17,750 to be the amount of money that would reasonably compensate appellee for the injury to him which was directly and proximately caused by appellant's train striking the car in which he was working. Based upon the stipulation of the parties and the findings of the jury, the court rendered judgment in favor of appellee for the amount of the found damages. Appellant seasonably filed and presented its motion for new trial which was overruled and it has duly perfected its appeal from such judgment and order.

The appeal is predicated upon two points of error as follows: the trial court erred in refusing to grant appellant's motion for new trial (1) 'because the verdict of the jury awarding plaintiff $17,750 damages is supported by insufficient evidence and is contrary to the overwhelming weight of the evidence on the damage issue'; and (2) 'because of the highly prejudicial and inflammatory argument of plaintiff's attorney to the jury inducing the jury to award damages to plaintiff because of his dangerous high blood pressure which had him 'sitting on top of a volcano' and disabled him, when all the evidence showed that such condition was in no way produced or aggravated by any act of defendant.'

In passing upon appellant's first point of error, it is the duty of this court to consider and weigh all of the competent evidence introduced upon the trial which tended to throw any light on the nature, extent and duration of the injuries of which appellee complains and the amount of compensatory damages resulting therefrom. If it clearly appears from the record in its entirety that the findings of the jury on the issue of damages are against the great weight and preponderance of the evidence as a whole to such extent as manifestly to be wrong and unjust, when the point should be sustained; otherwise, it should be overruled. Briscoe v. Bronaugh, 1 Tex. 326; Choate v. San Antonio & A. P. Ry. Co., 90 Tex. 82, 37 S.W. 319; Federal Underwriters Exchange v. Hinkle, Tex.Civ.App., 187 S.W.2d 122, er. ref.; McLean v. McCollum, Tex.Civ.App., 209 S.W.2d 959, er. ref.; Missouri-Kansas-Texas R. Co. of Texas v. Webb, Tex.Civ.App., 229 S.W.2d 204, pts. 14-16, er. ref. n. r. e.; In re King's Estate (King v. King), Tex.Sup., 244 S.W.2d 660.

The statement of facts in the case consists of 395 pages. Since appellant admitted liability for the injurious consequences of the collision, practically all of the evidence adduced upon the trial related to the damage issue. Of the ten witnesses who testified during the trial, six were laymen and four were medical doctors, two of the doctors having been introduced on behalf of appellee and two on behalf of appellant. Any attempt to summarize all of the material testimony elicited from each of these witnesses would necessarily require this opinion to be extended beyond the length of propriety. Although we have duly considered all the evidence, it must suffice to mention briefly only the substance of what we regard as the most salient aspects of the same.

From the testimony of appellee and other lay witnesses who testified in his behalf, it appears that he was about fifty years of age at the time of the collision, had a life expectancy of approximately twenty years and was earning as take-home pay about $34 per week. At that time he was physically strong and capable of doing heavy manual labor, weighed 165 pounds and had been doing hard work continuously for thirteen years for Ruhmann Grain Company and Bewley Mills without the loss of any time on account of illness or injury. Appellee testified that he was in the act of unloading ten-pound sacks of meal from the box car at the time of the collision; that he had eight of the sacks stacked in his left arm with two sacks in his right hand, facing in a direction opposite to that from which the train came, when, without any notice or warning to him, the train struck the car in which he was standing with such force as to knock the car, with its brakes set, a distance of twelve or thirteen feet down the spur track; and that the force of the impact caused him to fall backward and to strike his back just above the belt line against some object.

Appellee further testified that after the collision he slid himself out of the car and, with the assistance of Charlie Spratt and Chester Harrison, two other employees of Bewley Mills, he made his way into the warehouse where he lay down on some sacks in order 'to try to get myself together.' In a short time his back and left leg began to hurt, the pain became more intense and he then walked about one block to his home, where he remained in bed until Mr. Carl, the bookkeeper for Bewley Mills, took him in an automobile to the office of Dr. R. B. Alexander for a medical examination. He was thereafter examined on different dates by Doctors Anspach, Souther and Richey. According to his testimony, he had never had any pain or trouble with his back before the collision but thereafter he was not free from pain for any appreciable time up to the date of trial on May 5, 1952; he continued to lose weight until he got down to 135 punds, and, because of his painful and weakened condition, he was continuously unable to do any kind of work.

Doctors Alexander and Richey were introduced as witnesses on behalf of appellant. Dr. Alexander testified that he examined appellee on July 19, 1950, saw him again on July 20th and finally on July 22nd; that appellee complained of pain in his back and down his left leg, giving the following history: 'while unloading box car, as I got to the door with sacks of meal, switch engine hit box car and I was thrown backwards against the door'; he did not take any X-ray pictures but from the manual examination which he made he found no demonstrable pathology, all symptoms being subjective; he strapped the patient's back and gave him some salicylate tablets to ease his pain; the last time he saw appellee on July 22, 1950, it was his opinion that the patient did not sustain an injury of any consequence, and that he could have continued to work from the day of the injury.

Dr. Souther examined appellee for the first...