Texas & P. Ry. Co. v. Bigham

• Decision Date: 06 March 1895
• Citation: 30 S.W. 254
• Parties: TEXAS & P. RY. CO. v. BIGHAM.
• Court: Texas Court of Appeals

30 S.W. 254

TEXAS & P. RY. CO. v. BIGHAM.

Court of Civil Appeals of Texas.

March 6, 1895.

Appeal from district court, Taylor county; T. H. Connor, Judge.

Action by W. R. Bigham against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

B. G. Bidwell, for appellant. J. H. Beall, for appellee.

STEPHENS, J.

Appellee, having placed a lot of cattle in the stock pens of appellant at Merkel, Tex., preparatory to shipment, was in the act of tying the gate with a rope, it being so out of repair that it could not otherwise be fastened, when the noise of a passing train so startled them that they broke through the gate, whereby he sustained painful personal injuries and other damage. He sued to recover for the personal injuries, for a broken watch, for the loss of three weeks' time, and for injury to the cattle, and obtained a verdict in the sum of $750, from which this appeal is prosecuted. There was neither allegation nor proof of the value of the three weeks of lost time. The third error is assigned to so much of the charge as submitted to the jury that they might allow reasonable compensation for such loss of time, because there was no evidence of the value thereof. Upon the authority of Railway Co. v. Simcock, 81 Tex. 503, 17 S. W. 47, which seems directly in point, this assignment must be sustained. The evidence relied upon by appellee to raise this issue is thus stated in his brief: "The testimony of appellee and G. W. West is that appellee was clerking for West at the time he was hurt, and was absent from the store four or five days, when he returned, and had his sons to assist him with his work for about a month after being hurt." The record is entirely silent as to the value or contract price of his wages, though easily susceptible of definite proof by both appellee and his employer. In such case the jury should not be left to mere conjecture. It is not analogous to those cases of uncertain damages, which, in their nature, cannot be ascertained with mathematical precision.

The further contention of appellee, that because the damage to his person was laid at $1,500, and that to his property at $100, we should conclude that the verdict for $750 showed that the jury allowed him one-half the amount sued for, to cover personal injuries, is equally untenable. To so hold would be to guess that the jury did not guess at the value of the lost time. For this error in the charge the judgment is reversed, and...