Ft. Worth & R. G. Ry. Co. v. Neal

JENKINS, J. Appellee was a passenger in a caboose on appellant’s road. While said caboose was standing on the track at one of appellant’s stations, it was run into and wrecked by an engine hauling a train on said track. Appellee received injuries in said wreck for which he recovered judgment herein in the sum of $4,000, from which judgment appellant prosecutes this appeal. [1] 1. Appellant assigns error on the refusal of the court to allow it to ask Dr. Long, a witness for appellee, the following question, “Is it not a fact that people who have damage suits against railroads, and other causes for simulating injury, can and do fool physicians to a great extent about what is the matter with them when it is an internal injury?” As to whether this appellee was probably or possibly deceiving this witness was a proper subject of inquiry, and appellant was permitted to pursue such inquiry to the fullest extent. It was proper for appellant to show, if it could, that ap-pellee was probably malingering; but that others had done so would not tend to prove this fact. It was permissible to show that the alleged injuries of appellee were of such a nature that a physician could not determine with certainty their existence or nonexistence; but that other persons had been able to deceive other physicians as to other alleged injuries was irrelevant and immaterial as to any legitimate inquiry in this case. 2. The appellant assigns error on the charge of the court in submitting the general issue of negligence in the operation of appellant’s train as the cause of the appellee’s injury, upon the ground that appellee specifically alleged the negligence complained of, and therefore the doctrine of res ipsa loquitur does not apply. Appellant is in error as to the nature of appellee’s allegations. He does, in a separate count of his petition, wherein he claims exemplary damages, allege that appellant’s train crew were incompetent, and were retained by appellant in its service after such incompetency was known to it. But no evidence was offered to sustain this allegation; appellee did not request that it be submitted to the jury, and it was not submitted, for which reasons it must be treated as having been abandoned. As to actual damages, appellee alleged in general terms that the collision occurred by reason of the negligence of appellant’s servants in operating its said trains, and each of them, for which reason the doctrine of res ipsa loquitur is applicable. [2] 3. The uncontroverted evidence shows that appellee was thrown from the caboose in the collision, for which reason the court did not err in assuming such fact in its charge. [3] 4. We cannot, under the evidence in this case, say that the judgment is excessive. This being a matter for the jury, we will not invade their province, unless there is good reason to believe that they were influenced by bias or prejudice. Finding no error in the record, the judgment herein is affirmed. Affirmed.