Merrill v. Louisiana Ry. & Nav. Co. of Texas , 1928 Tex. App. LEXIS 252 ( 1928 )

LEVY, J.

(after stating the facts as above).

The court’s charge authorized the jury to reduce the amount of damages in case they should find the plaintiff was guilty of contributory negligence in relation to the position in which he placed himself in handling the trunk or in failing .to have the station agent scotch the wheels of the truck. The appellant, as grounds for error, claims that there was no evidence authorizing the submission of such matters to the jury. The jury rendered a verdict for defendant and against plaintiff for any recovery of damages. There was no reduction of damages. So that in no event, it is believed, would the charge complained of, if error, warrant a reversal, for it could not be held harmful. Rule 62a. The charge did not bring about the verdict against the plaintiff or any recovery of damages.

The court’s charge authorized a verdict in favor of the defendant in case the jury should find that the plaintiff’s injuries were the result of a risk ordinarily incident to the work in which the plaintiff was engaged, and was not proximately caused by the negr ligence of the defendant’s agent, Head. The objection to the charge is that there was no evidence to warrant it. It was pleaded as a defense, and there is evidence sufficient to raise the issue, considering all the circumstances shown.

The objection that the findings of the jury are against the preponderance of the evidence may not be sustained. The evidence is quite conflicting, and the decision of the jury would be controlling.

The motion for new trial set up as a ground newly discovered evidence. The affidavit of the purported witness was attached, reciting to the effect that he was riding on the train at the time of the alleged occurrence and saw the appellant and the station agent loading a large .trunk into the baggage car from the truck beside the car, and that the station agent “either jumped or fell off the truck and dropped the trunk.” He further testified that he “did not see Mr. Merrill any more, and did not know that he was hurt or claimed to be hurt” until some days afterward, “when I heard some railroad men talking about Mr. Merrill claiming to have been hurt handling a trunk at Earmersville.” The evidence was merely cumulative concerning the size of the trunk and the station agent’s act in handling the trunk. I.t throws but little additional light upon whether or not the trunk did cause injury to plaintiff as he claimed it did, and upon whether or not the trunk was express or baggage. The verdict of the jury was evidently founded / upon the ample evidence showing that the trunk was express, and not baggage. It is believed that the trial court did not err in overruling the mo.tion.

The judgment is affirmed..