Louisiana Ry. & Nav. Co. of Texas v. Smith ( 1926 )

The first paragraph of the court's charge is as follows:

"``Negligence,' as that term is used in this charge hereinafter, means the failure to perform a duty owing by one person or corporation to another. It is the duty of a railway company, when engaged as a common carrier of passengers for hire, to exercise a very high degree of care of the safety of its passengers, and a failure to do so would be negligence. By ``very high degree of care' is meant such care as a person of very high prudence would use under the same or similar circumstances."

This paragraph was excepted to upon the ground that it imposes a higher degree of care than required by law in the language "very high degree of care" and "a person of very high prudence." It is believed that the rule is not more forcibly expressed than authorized. Equivalent language has been employed in other reported cases. Ry. Co. v. Keeling, 102 Tex. 521,120 S.W. 847; Ry. Co. v. Miller, 79 Tex. 78, 15 S.W. 264, 11 L.R.A. 395, 23 Am. St. Rep. 308; Hutchinson on Carriers (2d Ed.) § 500.

Appellant complains of the efficiency of the evidence to support a finding by the jury of permanent injuries such as are alleged, and in the amount of damages awarded. After a full consideration of the evidence, it is believed that this court would not be warranted in disturbing the verdict of the jury in their finding that there was permanent injury of a serious character and in their findings as to the amount of damages. The testimony of Bessie Smith goes to show that serious injury was suffered by her. Light Co. v. Atwood (Tex.Civ.App.) 138 S.W. 1101. And, if her evidence is given credence, her injury is permanent. There is no suggestion in the record against giving full credence to her evidence. The medical testimony, considered as a whole and properly weighed, is not entirely opposed to the conclusion that the injury claimed by her is grievous. There is no suggestion of any kind in the record that the jury were led away by sympathy or any improper argument.

We have considered all the assignments of error, and conclude that each of them should be overruled as presenting no harmful or reversible error.

The judgment is affirmed.