Texas & N. O. R. Co. v. Coogler, 4502.

• Decision Date: 04 March 1948
• Docket Number: No. 4502.,4502.
• Parties: TEXAS & N. O. R. CO. v. COOGLER.
• Court: Texas Court of Appeals

209 S.W.2d 778

TEXAS & N. O. R. CO. v. COOGLER.

No. 4502.

Court of Civil Appeals of Texas. Beaumont.

March 4, 1948.

Rehearing Denied March 7, 1948.

Appeal from District Court, Polk County; Ernest Coker, Judge.

Suit by T. S. Coogler against the Texas & New Orleans Railroad Company for personal injuries received while unloading freight from a car struck by another car in making a flying switch. Judgment for plaintiff, and defendant appeals.

Affirmed.

Roy L. Arterbury, of Houston, M. M. Feagin, of Livingston, and Baker, Botts, Andrews & Walne, of Houston, for appellant.

Campbell & Foreman, of Livingston, for appellee.

COE, Chief Justice.

This is an appeal from a judgment of the District Court of Polk County wherein appellee filed suit for damages for injuries received by him on November 29, 1946. The case was tried to a jury and upon the verdict of the jury the court entered judgment for appellee in the sum of $40,000.

Appellee, among other things, alleged that on the date of the accident, November 29, 1946, he was and had been for sometime prior thereto employed by appellant in the hauling and delivering of freight from its depot in Livingston, Polk County, Texas, to the consignees in said city; that as part of the duties of his employment it was necessary that he unload local freight from the cars at the depot in Livingston, and that on said date, while actually engaged in the discharge of his duties in unloading freight from a car, spotted at the depot, to be hauled by him to the consignees of said freight; that the agents, servants and employes of said railroad company carelessly, negligently and wantonly, and in total disregard of the safety of appellee, made a flying switch, throwing one or more cars into the siding on which the car in which appellee was working was located, without an engine attached thereto and power brakes to control same as were adequate to control and keep said car from running into and striking the car in which appellee was working with great force, which negligent and wanton acts on the part of the appellant were each direct and proximate causes of the car in which appellee was working being struck by such cars with such violent force as to inflict on appellee the injuries alleged to have been received by him; by trial amendment he alleged that the appellant kicked one or more cars onto the siding, and into the car in which the appellee was working, was located, without adequate brakes to control same and without having warned appellee that said cars would be pushed against the car in which he was working, that they were negligent in failing to keep an engine attached to said cars with adequate braking equipment to control and stop same before striking the car in which appellee was working, alleging the damages to be in the sum of $60,000 and the further sum of $750 for medical, hospital and doctors' bills which he was forced to incur in connection with the injuries received.

The appellant answered by a general denial and by special answer alleged that if appellee received any injuries on the occasion in question, such injuries were a direct and proximate result of his own negligence and contributory negligence. The only question presented for our decision is whether or not the damages awarded appellee are excessive in an amount requiring the appellee to file a remittitur or upon his failure so to do to reverse and remand this cause for another trial. The appellant's contention being that the answer of the jury to special issue No. 10 (assessing the damages suffered by appellee) is contrary to and against the great weight and preponderance of the evidence and should be set aside and held for naught, that appellee having himself plead that he had certain physical deformities and abnormalties prior to the accident, assumed the burden which he failed to discharge of distinguishing by competent evidence between such prior injuries and the injuries, if any, which he received on the occasion in question, and not having discharged such burden the appellee is bound by the uncontroverted evidence offered by appellant to the effect that on the occasion in question appellee received only a muscular strain sufficient to disable him for only a comparatively short period. They further contend that the car that rolled against the car in which appellee was working was moving only two or three miles per hour, appellee could not, therefore, have received a violent fall, there were no resulting broken or misaligned bones. The only injury the appellee received was the muscular strain; that the damages awarded by the jury were therefore grossly excessive and should be reduced by at least $35,000. Appellant makes no contention that it was not negligent on the occasion in question, and that such negligence was the proximate cause of such injuries as the appellee received. The only contentions being that the appellee only suffered a muscular strain from which he would soon recover, therefore the verdict of the jury was grossly excessive.

The rule applicable to the character of cases here presented seems to be that although the verdict is large and the trial court in the exercise of the sound discretion might properly have set it aside, the appellate court would not disturb the verdict because it may seem too large, in the absence of circumstances tending to show that it was the result of passion, prejudice or other improper motive, or that the amount fixed was not the result of a deliberate and conscientious conviction in the minds of the jury and court or so excessive as to shock a sense of justice in the minds of the appellate court, but where the verdict appears to be palpably and manifestly excessive the trial court should set it aside and if it refuses to do so, the appellate court will reverse and remand the case for another trial or require remittitur.

In passing upon this question we must view the evidence in the most favorable light to appellee. When this is done the following is what is substantially shown: Appellee, in his young childhood, had suffered an affliction which had rendered him a cripple throughout his life, incapacitating him to some extent in the use of his right leg and left arm, producing a curvature of the spine and an abnormal condition in the pelvic or lumbar region, some deformity in his left hip and other deformities, that notwithstanding these handicaps the appellee, to a large extent, overcame the disabilities thus caused him and was able to and did work regularly at hard manual labor and on many occasions assisted in handling heavy objects in the course of his work, and was always physically able and did his part. This was shown by several witnesses who had...