Lancaster v. Hynes

LEVY, J. (after stating the facts as above). [1] There was no error in allowing the plaintiff to testify that he was in line of promotion from brakeman to conductor, and the first assignment of error is overruled. [2,3] The second, third, and fourth assignments predicate error upon the refusal of the court to give certain special charges denying a recovery to plaintiff upon the finding of contributory negligence on his part. The case was submitted on special issues, and neither one of the special charges complained of ivas in the form of a question. The court’s question was framed as follows: “Do you find from a preponderance of the evidence in this case that the plaintiff was guilty of negligence, as herein defined, by attempting to get aboard the train at the time and place and in the manner as shown by the evidence?” It directly included every phase of the evidence and the matters contained in the special charges. It is thought that it was not error to refuse. the special charges on another ground, namely, that the plaintiff was injured by reason of the violation of the federal Safety Appliance Act, and that the federal Employers’ Liability Law (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]) is applicable here. Sections 8608-8618, U. S. Comp. Stat. of 1918, require that cars be equipped with secure grabirons and ladders, and section 8659 makes inapplicable the doctrine of contributory negligence. T. & P. Ry. Co. v. Sprole, 202 S. W. 985; T. & P. Ry. Co. v. Rigsby, 241 U. S. 33, 36 Sup. Ct. 482, 60 L. Ed. 874. [4] By the fifth assignment of error it is contended that the 'amount of the verdict is excessive. The amount of the verdict, it is concluded, is much larger than is usually awarded as compensation for the particular kind of injury shown in this record. The extent of the injury here was the loss of part of the two outside fingers of the left hand, and it is considered that the contention that the amount of the verdict-is excessive should not be overruled. Railway Co. v. Dorsey, 66 Tex. at page 153, 18 S. W. 444. But in fixing a proper amount it is to be considered that in this record there appears as damage to the appellee, besides the less of a part of the two fingers, the fact that under rules of physical examination the injured hand operates as a bar to the appellee from continuing in railway service on standard railways. In view of the particular, record, it is believed that we may not require a remittitur of exceeding $2,500, which is here ordered to be made within 10 days from this date. Upon the filing of the remittitur required, the judgment will be affirmed; otherwise, the judgment will be reversed, and the cause remanded. Footnotes [1] <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes