San Antonio & A. P. Ry. Co. v. Robinson

• Decision Date: 12 March 1889
• Citation: 11 S.W. 327
• Parties: SAN ANTONIO & A. P. RY. CO. <I>v.</I> ROBINSON.
• Court: Texas Supreme Court

11 S.W. 327

SAN ANTONIO & A. P. RY. CO.

v. ROBINSON.

Supreme Court of Texas.

March 12, 1889.

Appeal from district court, Colorado county.

Action by W. R. Robinson against the San Antonio & Arkansas Pass Railway Company for personal injuries. Plaintiff, when testifying in his own behalf, was allowed to testify, over the objection of defendant, that he had a wife and four children, and plaintiff's counsel, while making the closing address to the jury was allowed to say, "He [meaning plaintiff] would be derelict in his duty to himself if he did not make the railway company [meaning defendant] pay himself and his family;" also, "Well, he [meaning plaintiff] has got a family, and they will get the benefit of it." Judgment for plaintiff, and defendant appeals.

S. C. Patton, for appellant. Foard, Thompson & Townsend, John M. Green, and Oscar D. Kirkland, for appellee.

HENRY, J.

Appellee instituted this suit to recover from appellant damages for injuries received in a wreck of its train when he was a passenger on it. The petition charges that the road was newly constructed, and in bad condition, requiring great care in running trains over it; that the train was composed mainly of freight cars, loaded with railroad ties, and did not have the necessary brakes; that defendant's servants, operating the train, by gross negligence and carelessness, ran it at the rate of 50 miles an hour, down a heavy grade, approaching a bridge, both the track and the bridge being in bad condition, whereby the entire train was wrecked, causing plaintiff great and permanent injuries, which are fully described. The petition alleges that plaintiff was a married man, and of great physical vigor before his injury, but without health or strength afterwards, and that he is now a physical wreck; that from the day he received his injuries he has suffered physical and mental pains, and that by reason of his said injuries he has been damaged $50,000. Plaintiff, by amendment filed at the term at which the case was tried, set up the fact of his being a skillful physician, engaged previous to his injury in the practice of his profession, and realizing therefrom $5,000 per annum, all of which he alleged had been lost to him by reason of his having been utterly disabled from pursuing his profession by reason of his injuries. The defendant made an application for continuance to enable it to procure evidence to disprove these allegations. The application was sufficient, and it ought to have been allowed, except for the fact that plaintiff replied to it by abandoning and striking from his petition all allegations to which the application related, after which the motion to continue was properly overruled. The abandonment of these allegations left the plaintiff's pleading without any averment that he was a physician, or that he had then, or ever had, any occupation, or that he had suffered damage in any respect, from loss of occupation, and without an allegation of pecuniary damage in any respect except as resulting from his impaired physical condition and the mental and bodily pain produced thereby. In this condition of his pleadings plaintiff was allowed to introduce evidence that he was a physician, and skillful and efficient as such, but not to prove the value of his services, and was also allowed to prove that he was not then practicing his profession because he was not able to do so. Other witnesses connected his disability with the injuries for which this suit was brought. This evidence was objected to by defendant, on the ground that the only allegations under which it was admissible had been abandoned. In this connection the court gave the following charges: "It is not necessary that any witness should have sworn to or expressed any opinion as to the amount of such damage, but the jury may themselves make such estimate from the facts and circumstances in proof, and by considering them in connection with their own knowledge, observation, and experience in the business affairs of life." "If you find for plaintiff, you may take into consideration the nature and kind of his business, and the value of his services in conducting the same, the probable effect of his injuries in the future upon his health, his ability to labor and attend to his business, and generally any reduction of his power to earn money." Subsequently, at the request of the defendant, the court charged the jury as follows: "There is no evidence before you showing any actual pecuniary loss from his business, or that the plaintiff was engaged in any remunerative business whatever prior to his injury, and if you find for plaintiff upon other charges herein given, you will exclude from your consideration, in estimating the actual damages sustained by him, all elements of actual damages except what you may find to be a fair compensation for the physical and mental suffering which the evidence shows to be the direct and proximate result of the injury."

It is quite evident that the charge that the jury might take into consideration the nature and kind of plaintiff's business, and the value of his services in conducting the same, was an oversight upon the part of the court, and that the purpose of giving the contrary charge, at the request of defendant, was to correct the error. We would find less difficulty in holding that the error was sufficiently corrected without withdrawing from the jury the objectionable charge, which was the proper thing to do, if the court had not also charged that in estimating the amount of damages it was not necessary that any witness should have sworn to or expressed any opinion as to the amount of such damage, but that they might themselves make such estimate from the facts and circumstances in proof, and by considering them in connection with their own knowledge, observation, and experience in the business affairs of life. It is true that this charge was in terms limited...