Phillips v. Texas & P. Ry. Co. ( 1926 )

Appellant insists that the findings of the jury, showing appellee and its employes not to have been guilty of negligence which was a proximate cause of the accident resulting in injury to him, were against the "overwhelming weight of the testimony." We have read and considered all the testimony in the statement of facts sent to this court, and do not agree with appellant in his view of it. It would serve no useful purpose to set out and discuss the testimony. Therefore we only say that, as we understand it, it furnished support for each of the findings attacked.

The jury found that the locomotive whistle was sounded at a point 80 rods from the crossing as required by the statute. Article 6564, Vernon's Sayles' Ann.Civ.St. 1914. They found further, in response to an issue submitted to them at appellant's request, that, under the circumstances of the case, the whistle should have been sounded at a place nearer than 80 rods from the crossing, and then found that it was sounded at such a place. The finding last mentioned is attacked by appellant as against the testimony. There is no merit in the complaint. The witness Saylor, the engineer operating the locomotive of the west-bound train, testified that he blew the whistle at a point "about 300 yards east of the crossing;" and the witness Harris, the fireman on that locomotive, testified to the same effect.

Another contention urged in appellant's brief is that the court below erred when he refused to permit appellant to show by the affidavits, and testimony of jurors who tried the case, in support of his motion for a new trial that "the jury," quoting, "misapprehended and misinterpreted the whole case, showing that they failed to comprehend the charge of the court with reference to the facts proven and failed to apply the law given in the charge to the evidence before them." The contention is overruled. Caylat v. Railway Co., 252 S.W. 478, 113 Tex. 131, and authorities there cited.

The judgment is affirmed.