Texas Cent. R. Co. v. Andrews
| Decision Date | 29 March 1902 |
| Citation | 67 S.W. 923 |
| Parties | TEXAS CENT. R. CO. v. ANDREWS.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from district court, Comanche county; N. R. Lindsey, Judge.
Action by W. J. Andrews against the Texas Central Railroad Company for personal injury. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Modified and affirmed.
J. A. Kibler, Hutchinson, Presler & Hutchinson, and Clark & Bolinger, for appellant. Wynne, McCart & Bowlin, and J. E. McCarty, for appellee.
This appeal is from a verdict and judgment for $1,500 in a personal injury case, and is submitted on four assignments of error, all complaining of the refusal of the trial court to grant a new trial.
The first complaint is that the amount of the verdict is excessive; and the second, that the verdict was procured by fraud; but both must be overruled. The evidence tended to show, and warranted the finding, that appellee sustained a painful injury, termed by the medical experts "incomplete hernia," as a result of his fall from a moving train, due to the negligence of appellant. It matters not that the charge submitted only "physical pain and mental anguish" as the elements of damage, if the pleadings and evidence included other grounds of recovery. Besides, unless the case was one of feigned injury and pain, as claimed in the second assignment, appellee's suffering must have been considerable, and was perhaps of itself sufficient to warrant the verdict; and, while there were circumstances tending to show that appellee had exaggerated his pain and injury, we would not be warranted in disturbing the verdict upon this ground.
The remaining assignments complain of the court's refusal to grant a new trial in so far as it was applied for on the ground of a compromise of the suit pending the trial, and of newly discovered evidence, consisting of the written admissions of appellee, made as a part of, or at least in connection with, the compromise. The answer to this complaint is that no sufficient excuse was offered for not presenting this matter to the court before the case was submitted to, and determined by, the jury. It was shown on the hearing of the motion for new trial that pending the introduction of testimony one of appellant's agents compromised the case with appellee in person by paying him $750, and agreeing to pay the costs of suit, in full satisfaction of the demand, and that appellee and this agent at once and hurriedly left the county, without referring the matter to the court, as might have been done, before verdict. The excuse for this course was not such as to commend itself to the court, and the motion for new trial was, we think, properly overruled, especially as appellant had placed itself in the awkward position of asking the court to allow it another trial of what it...
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