* Writ of error dismissed for want of Jurisdiction March 29, 1922.
The contention presented by assignments numbered 1 and 6 is that it appeared from the testimony that the deceased was guilty of contributory negligence as a matter of law. Practically all the testimony relied on to support the contention, it appears from plaintiff in error's brief, was with reference to acts and omissions of Partney, the driver of the truck, and not to conduct of the deceased. That testimony, so far as it referred to the deceased, showed only that he accompanied Partney to the Texas Company's plant, where he helped him load the truck, and was sitting beside him in the truck at the time the collision occurred. It did not show, nor have we found anything in the record showing, that Partney and the deceased were engaged in a joint enterprise, or that the deceased had anything whatever to do with the operation of the truck, or any control over or right to direct Partney in the operation thereof. Certainly, the mere fact that the deceased was with Partney when the latter passed over the crossing in going to the Texas Company's plant, and so had an opportunity to know the condition of the crossing and the danger involved in passing over it, did not show that he was guilty of negligence as a matter of law in being in the truck at the time of the accident. And, as plainly, it did not show, if Partney was guilty of negligence, that his negligence was imputable to the deceased. Railway Co. v. Wentzel,214 S.W. 710; Railway Co. v. Gibson, 83 S.W. 862. So, we think, the contention should be overruled, whether it is, as presented by the assignments and propositions under same referred to, that deceased was himself guilty of negligence, or is, as indicated by testimony relied on in the brief as supporting it, that Partney was guilty of negligence which was imputable to the deceased.
The assignment attacking the verdict and judgment as excessive also is overruled. There is nothing in the record indicating that the jury were influenced by "passion, prejudice, or other improper motive" in finding the amount they did, and we cannot say that amount is "manifestly excessive." Hence the rule applicable would not warrant this court in substituting its judgment for that of the jury and trial judge as to the sum which would compensate defendants in error for the loss they incurred by the death of their son. Railway Co. v. Dorsey, 66 Tex. 148, 18 S.W. 444; Texas Electric Co. v. Whitmore, 222 S.W. 644; Railway Co. v. Dodd,167 S.W. 238; Railway Co. v. McGraw, 55 S.W. 756; Railway Co. v. Olmstead, 56 Tex. Civ. App. 96, 120 S.W. 596; Railway Co. v. Blalack, 128 S.W. 706; Railway Co. v. Greb, 63 Tex. Civ. App. 78, 132 S.W. 489; Railway Co. v. Neal, 140 S.W. 398; Freeman v. Grashel, 145 S.W. 695; Railway Co. v. Hynes, 21 Tex. Civ. App. 34, 50 S.W. 624. "We are not," as the Supreme Court said they were not, in the case first cited, "better prepared for judging what is a proper verdict in such case than any well-qualified juror."
The judgment is affirmed.