Texas and Pacific Railway Co. v. Frank ( 1905 )

This is a personal injury suit, and from a judgment in favor of the plaintiff the defendant prosecutes this appeal. The plaintiff alleged in his petition that he was confined to his bed ten days at a loss of $2.50 per day; that was the only averment in reference to loss of time. The plaintiff's testimony tends to show that he lost fifteen whole days of time, and parts of an uncertain number of other days on account of the injuries complained of, all of which time he testified was worth $2.50 per day.

As to the measure of damages the court instructed the jury as follows: "If you find a verdict for plaintiff you may, in estimating his damages, consider any injury to his buggy; any loss of time by him; any reasonable expense for physician; any reasonable expense for medicine, and any bodily and mental pain suffered by plaintiff, which the evidence may show is the direct result to plaintiff of the injuries, or damages, if any, caused by the negligence of defendant, and assess such amount as will, in your judgment, reasonably compensate him therefor."

This instruction is assigned as error, because it authorized the jury to allow the plaintiff more compensation for loss of time than was authorized by his pleading. The assignment is well taken, and, as there was testimony tending to show greater damage resulting from loss of time than was set up in the plaintiff's petition, the error complained of was material; and the evidence on the subject being too indefinite for the error to be cured by remittitur, a reversal must follow. (City of Dallas v. Jones, 93 Tex. 38; Texas Pac. Ry. v. Taylor, 58 S.W. Rep., 844.)

We also hold that appellant's requested instruction number eleven should have been given. The court's charge on the subject of contributory negligence was general, while the requested instruction referred to was more specific; and, being correct in form, it was error to refuse to give it.

No error was committed in refusing to permit the engineer and fireman who were running the train on the occasion in question to testify that it was their habit or custom to ring the bell and blow the whistle at the place where the accident occurred. (Missouri, K. T. Ry. Co. v. Johnson, 92 Tex. 380.)

Some other questions are presented, on all of which we rule against the appellant.

For the errors pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.