East Line & Red River Railroad v. Lee , 71 Tex. 538 ( 1888 )

Walker, Associate Justice.

This court has repeatedly held that a railroad company can not lease its road to another so as to absolve itself from its duties to the public. (R. R. Co. v. Morris, 68 Texas, 59; R. R. Co. v. Keuhn, and same v. Eckford, at Austin term, 1888.) The charge asked by appellant, “that if plaintiff’s ticket was bought from and issued by the Missouri Pacific Railway Company, or any other company than the East Line & Red River Railway Company, and if the train on which he was—if he was on any train—was owned and being operated by the Missouri Pacific Railway Company, or any other company, you will find for the defendant,” was therefore properly refused. It was shown by the conductor “that the Missouri Pacific train was the only one running” upon the road of the defendant at the place of the alleged injury.

It is complained that the charge directed the jury, “should they find for the plaintiff, they should find such actual damages as the evidence may show him entitled to, not exceeding the amount sued for.” The petition claimed five thousand dollars actual and five thousand exemplary damages. The claim for exemplary damages on the trial was abandoned, and the court in the charge had directed the jury “that they will only consider the question of actual damages.”' It will not be presumed that the jury did not understand the charge. It has been held that “where the jury found greatly less than the amount claimed, and not more than they were justified under the evidence,” the verdict for that cause alone will not be set aside. (Newman v. Dodson, 61 Texas, 98; Brunswig v. White, 70 Texas, 504.)

The testimony to the fact of the injury is contradictory; not more so than is usual in this class of cases. The jury with the witnesses before them could well determine their credibility and the weight of the testimony. We can not say the verdict is without or against the evidence. Nor is the verdict for five hundred dollars excessive. Plaintiff’s version of the affair is here given: “The train was moving about ten miles an hour. He (the conductor) took me by the shoulder, gave me a shove which threw me off the train, and I hit the ground, left shoulder first. * * I was not ‘stove up’ or seriously injured, but was considerably bruised. * * I had no bones broken and no sprains; it just made me a little sore for a week. I was unable to work during that time.” The train from which plaintiff was thrown was on an embankment about a foot and a half high. The violence to his person, the danger and the actual injury well support the verdict.

Finding no error, the judgment below will be affirmed.

Affirmed.

Opinion delivered October 23, 1888.