Port Terminal R. R. Ass'n v. Fontenot
| Citation | 469 S.W.2d 299 |
| Decision Date | 23 June 1971 |
| Docket Number | No. 504,504 |
| Parties | PORT TERMINAL RAILROAD ASSOCIATION, Appellant, v. Jerry R. FONTENOT, Appellee. (14th Dist.) |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
William H. Tenison, Jr., Andrews, Kurth, Campbell & Jones, Houston, for appellant.
Tom R. Letbetter, George Payne, Garrett & Letbetter, Houston, for appellee.
This action was brought by plaintiff, Jerry R. Fontenot, appellee here, under the Federal Employers' Liability Act (45 U.S.C.A., Sections 51 et seq., as amended) for damages resulting in personal injuries to said plaintiff while he was employed as a switchman by defendant, Port Terminal Railroad Association, appellant in this court.
In answers to special issues the jury found that Port Terminal Railroad Association was negligent in four specific acts or omissions, each of which was a proximate cause of the accident and injuries to Fontenot. The jury, however, found that Fontenot failed to keep a proper lookout for his own safety and that such failure was negligence and a proximate cause of the accident. On the comparative negligence issue as to lookout, the jury found that appellee's negligence amounted to 12 1/2% Of the whole. On the damage issues the jury found that the total amount of damages for physical pain, past and future; mental anguish, past and future; loss of earnings in the past and diminished capacity to work and earn money in the future was $100,000.00. The jury also assessed as damages the sum of $2,000.00 for necessary past and future medical costs and expenses. Judgment was rendered in the trial court in favor of appellee in the sum of $89,031.25, pursuant to the verdict of the jury. Appellee had filed a remittitur in the sum of $250.00 in regard to future medical expenses.
The railroad association has brought forward two points of error, to-wit: the alleged error of the trial court in failing to order a mistrial when appellee's attorney brought before the jury hearsay testimony which was calculated to lead the jury to believe that appellant's lawyer and a woman detective were attempting to have appellee fired from his current job as a truck driver because of his prosecution of this lawsuit; and the alleged error of the trial court in refusing to grant a remittitur where damages for pain and suffering, mental anguish and lost wages in the amount of $100,000.00 were excessive.
The accident in question occurred on or about July 21, 1968, at which time appellant was doing business as an interstate common carrier of freight for hire by railroad. At the time appellee received his injuries he was attempting to mount a moving tank car. Appellee testified that in the early morning of July 21, 1968 his leg was hit on a switch while he was working on the Rohm & Haas job east of Deer Park, Texas. He had put his left foot in a stirrup on the car and shortly thereafter he let his right leg swing around, and he struck the switch with his right leg. The switch stand was owned and maintained by Rohm & Haas Company. Appellant's particular physical complaints involve his right leg and particularly his right knee.
Relative to the first point of error above, appellee's attorney asked appellee whether he had had some indication that he would be fired from his present job as a truck driver. The appellee's answer was 'Yes, Sir.' On objection by appellant's counsel the same was sustained. Pursuing a similar line of questioning regarding appellee's personal knowledge, appellee stated that the terminal manager told him that it was a lawyer and a woman detective who were involved in such transaction. Appellant's counsel again objected, and the jury was dismissed from the courtroom. Appellant's counsel objected on grounds of hearsay and moved that the court declare a mistrial by reason of the alleged damaging and incurable effect of such testimony in the presence of the jury. The trial court sustained the hearsay objection but denied appellant's motion for mistrial. When the jury was recalled the trial court instructed the jury as follows:
(Parenthesis added).
After the trial court's instruction, appellee never again alluded to the matter complained of and fully complied with the trial court's ruling thereon. Appellant contends that the instructions above given to the jury to disregard the objectionable questions and answers were insufficient to erase from the minds of the jury the alleged damaging testimony of the witness Fontenot. In an extended trial of this type, some error will ordinarily occur at some point. We have considered appellant's contention and have concluded that in view of the trial court's careful instructions to the jury, and the presumption that the jury obeyed the instructions of the trial court, no reversible error is shown. We overrule appellant's first point of error. See Walker v. Texas Employers' Insurance Association, 155 Tex. 617, 291 S.W.2d 298; Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277; Brock v. Graham, 321 S.W.2d 593, (Tex.Civ.App.), no writ; Rule 434, Texas Rules of Civil Procedure.
Appellant further contends that the trial court erred in refusing to grant a remittitur and calls upon this Court to order the same by reason of the alleged gross excessiveness of the $102,000.00 verdict . The fact that this case was tried in a state court means little when sufficiency of the evidence is concerned. We must determine the questions of negligence, causation and generally the sufficiency of the evidence to support the verdict by applicable federal law and decisions. Port Terminal Railroad Association v. Ross, 155 Tex. 447, 289 S.W.2d 220, 226; Hullum v. St. Louis Southwestern Railway Company, 384 S.W.2d 163, 172, (Tex.Civ.App.), writ ref., n.r.e.; Missouri-Pacific Railroad Company v. Prejean, 307 S.W.2d 284, 287, (Tex.Civ.App.), no writ. And federal courts have broadened the jury's function in F.E.L.A. cases so that very little evidence is required to uphold a jury verdict. Robinson v. Gulf, Colorado & Santa Fe Ry. Co., 325 S.W.2d 432, 435, (Tex.Civ.App.), writ ref.; Missouri Pacific Railroad Company v. Sparks, 424 S.W.2d 12, 16, (Tex . Civ.App.), writ ref., n.r.e.
At the time of the trial, appellee was approximately 31 years of age with an average life expectancy of about 40 years. After the above leg injury, appellee experienced considerable trouble with a large baseball-sized knot on his injured limb. He went to East End Medical Clinic where Dr. Diamonon made an incision in appellee's leg and removed clots of blood and other matter that contributed to the swelling. He continued to have problems with the leg and his condition worsened to such extent that he had to see Dr. Diamonon about twice a week. Appellee also saw Dr. Braastad at East End Medical Clinic, and this doctor advised him to go back to work. About three days after being advised to return to work, he became ill and noticed red streaks running up his leg toward his groin. He immediately entered St. Joseph Hospital under the care of Dr. Diamonon. He was there treated with antibiotics and soaks to control the infection. The wound was once again opened and dead tissue surrounding the injury was removed. Appellee was...
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B--- S--- L---, In re, 16055
...The record, therefore, supports the conclusion that the jurors obeyed the instruction to disregard. See Port Terminal Railroad Ass'n v. Fontenot, 469 S.W.2d 299 (Tex.Civ.App. Houston (14th Dist.) 1971, no Respondent lastly contends that jury misconduct also occurred during deliberations whe......