Texas Central Ry. Co. v. Burnett , 80 Tex. 536 ( 1891 )

This action was brought by appellee to recover damages for an injury claimed to have been received by his wife while a passenger on one of appellant's trains. There was a collision between the train in which appellee's wife was and another, and it is claimed that she was injured by the concussion.

The first and fourth assignments of error present the question whether the court erred in permitting physicians who knew the condition of Mrs. Burnett to give their opinions as to whether her injuries were such as would likely result from such a concussion as was shown, and the court correctly received their evidence.

Without specific averments as to the value of the services of Mrs. Burnett, proof of that fact was received, and it is insisted that this was error. The petition alleged the character of the injuries received, that they rendered her unable to attend to the ordinary affairs of life, and for this damages were sought, and we are of opinion that the evidence objected to was properly received. If appellant desired more specific information as to that matter he should have questioned the sufficiency of the petition by special exception directed to the matter.

In the charge the court, as was proper, without giving it any prominence, informed the jury that they could not award damages in excess of the sum claimed, and that this had no effect on the verdict prejudicial to appellant is evident from the fact that the verdict was for only $3000 while the prayer was for $20,000.

The court instructed the jury that before they could find any verdict for plaintiff the evidence must show affirmatively four facts, all of which were essential, and it is urged that such a charge was upon the weight of evidence. Such was not the character of the charge.

The charge in reference to the measure, of damages was not erroneous, and there was nothing in it to indicate to the jury that the court believed the evidence sufficient to sustain any item entering into the quantum of damages.

After instructing the jury that carriers of passengers by rail are required to use the highest degree of care for their safety, and that they are liable for the negligence of their servants resulting in injury to a passenger, the court, instructed the jury that "when it is shown by the proof that, an injury was received by reason of and as the direct result of an unusual occurrence, then the law presumes the occurrence so causing the injury to have happened by reason of negligence, unless it further appears by the proof that such unusual occurrence was not the result of negligence, but on the contrary was caused by some circumstance or cause which the exercise of the greatest care and prudence could not have prevented."

The charge was correct in so far as it informed the jury as to the degree of care it was incumbent on appellant to exercise, but so much of the charge as we have quoted was clearly a charge upon the weight of evidence, for it informed the jury that the law presumed negligence from the happening of any unusual occurrence producing the injury. This was equivalent to instructing the jury that they would find the injuries were caused by the negligence of appellant's servants if collisions between railway trains were unusual occurrences and caused the injury or any other unusual occurrence caused the injury, unless appellant brought proof to show that the accident could not have been avoided by the greatest care and prudence.

The statute declares that a judge "shall not charge or comment on the weight of evidence," and the charge in question clearly violated it. Railway v. Robinson, 73 Tex. 284; Heldt v. Webster, 60 Tex. 208.

It may be that the evidence was sufficient to sustain the verdict, but that is not the question we are now to pass upon.

For the error noticed the judgment will be reversed and the cause remanded.

Reversed and remanded.

Delivered April 21, 1891.