Gulf, C. & S. F. Ry. Co. v. Hicks , 1916 Tex. App. LEXIS 406 ( 1916 )

This is an action by the parents for the death of their son, 22 years old, who was killed in the wreck of a freight train due to appellant's negligence. At the time of the wreck the son was in the employ of the appellant as a brakeman, and was on top of one of the cars forming the train. The petition averred, and there is involved in the verdict of the jury the finding, that the wrecking of the train was due to negligence of the appellant, proximately causing the injury, in operating the train at too great a rate of speed over track not reasonably safe because of its defective condition. There is evidence to support the finding of fact made by the jury, and we adopt such finding. The verdict is for $7,000; the trial court, though, required a remittitur of $3,500.

In the former appeal of this case (Railway Co. v. Hicks, 166 S.W. 1190) the evidence respecting the award of damages is substantially set out, which is referred to and made a part hereof. We do not think the facts of the present appeal in respect to the amount of the verdict substantially differ from those of the former appeal. In that case it was concluded that the great weight of the evidence did not justify the award of a greater amount of damages than $1,100. We have reached the same conclusion in the present appeal as in the former one, and are unwilling to approve the amount of $3,500, upon the ground that it is, in point of fact, we think, excessive.

We have considered the other assignments of error, and think they should be overruled.

The judgment in this case is reversed, and the cause remanded, unless the appellees, within 15 days, shall enter a remittitur in the sum of $2,400, in which event the judgment will then be affirmed.