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3.—Same-Verdict Not Excessive.

A verdict for $16,000 held not excessive in a case where a railway engineer, 35 years old, earning $175 per month, was so injured as to cause intense and continued suffering and the loss of a leg.

Appeal from Bexar. Tried below before Hon. J. L. Camp.

Baker, Botts, Baker & Lovett and Newton & Ward, for appellant.

Perry J. Lewis and H. C. Carter, for appellee.

NEILL, ASSOCIATE JUSTICE.—This suit was instituted by appellee, William Abbey, against appellant to recover damages for personal injuries alleged to have been inflicted by the negligence of appellant while he was in the company's employ as a locomotive engineer.

The appellant answered by general and special exceptions, a general denial, and by pleading specially that appellee assumed the risk of the defect in the fastening of the engine's step by reason of which the alleged injury occurred, and that he was guilty of contributory negligence in failing to discover such defects.

The case was tried before a jury and a judgment rendered upon their verdict against appellant for the sum of $16,000.

Conclusions of Fact.—On November 22, 1900, appellee, a locomotive engineer of appellant, in starting on his run from Del Rio to Sanderson, after he had run his engine out of the roundhouse noticed a very bad “pound” on it which he could not precisely locate. For the

For the purpose of locating the "pounding,” and ascertaining whether it was caused from actual wear or something else, he got down on the tank step on the left side and waited until the fireman gave the engine steam, when he placed his left foot on the engine step which was ahead and a little lower than the one he was on, in order that he might get as low as possible so that he might locate the “pounding.” When his foot struck the engine step it turned about halfway around, and as it turned dropped from the stem it was on, and appellee fell to the ground with it, and the big driving wheel of the engine ran over his foot and ankle, crushing and mangling them. In consequence of his wounds it was necessary to have his leg amputated about three inches above the ankle joint. The necessary surgical operation was performed the next day in the city of San Antonio. From the time his injuries were inflicted until the amputation was made he suffered the most excruciating physical pain and agony. He still suffers, and the evidence indicates that he will continue to suffer physical pain in consequence of his wounds. The loss of his foot and ankle has incapacitated him from pursuing the avocation of locomotive engineer, for which he was well fitted and capacitated before his injuries were sustained, from the pursuit of which he was earning upon an average of $175 per month. He was 35 years old when injured. The engine step turned and slipped from the stem by reason of its being loose and insecurely,

fastened. Its insecure and defective condition was not open to ordinary observation nor known to appellee until it became evident by the steps turning and giving way when he placed his weight upon it. He was in the discharge of his duty when the accident occurred, and in the exercise of ordinary care.

From these facts, which are shown by the uncontroverted evidence, we conclude (1) that it was through appellant's negligence that the engine step was insecurely fastened, became loose and so defective as to render it dangerous in the use for which it was designed and intended; (2) that such negligence was the proximate cause of appellee's injuries; (3) that the risk occasioned by such negligence was not assumed by appellee, or such as was ordinarily incident to his employment; (4) that the appellee was guilty of no negligence proximately contributing to his injury; and (5) that by reason of appellant's negligence he has been damaged in the sum of $16,000.

Conclusions of Law.-1. In his petition appellee alleges that on the 22d day of November, 1900, he was in the employ of defendant in the capacity of a locomotive engineer; that on said date at Del Rio, while he was in the discharge of his duty, it became necessary for him to put his foot upon the engine step, and that while his foot was placed and resting thereupon, the step turned and dropped off, by reason whereof his left leg was thrust under the wheels of the locomotive, which crushed and mangled his foot and ankle to such an extent as to make their amputation necessary. That through defendant's negligence said engine step became loose, defective, and insecurely fastened, so as to make it dangerous when used for the purpose for which it was placed upon the engine; that defendant had negligently failed to inspect said step, which it was its duty to do, in order to discover its defective condition.

The appellant specially excepted to the petition upon the ground that it did not allege how and in what manner defendant had permitted the step of the engine to become loose, defective, and insecurely fastened, but only the conclusions of the pleader are therein stated. The court overruled the exception, and its ruling is assigned as error.

It is not necessary in pleading a cause of action growing out of the negligence of the defendant for the plaintiff to allege "in what manner” the defendant had permitted the negligence to occur.

The facts consti. tuting negligence are averred; that is enough. It was the appellant's business to know the condition of its engine when it was started from the roundhouse and appellee put to work upon it. If this business had been attended to, appellant might have ascertained how and “in what manner” it “had permitted the step to become loose, defective, and insecurely fastened.” Whether it would have found this out or not, it would have at least discovered that the step was loose and insecurely fastened and in a condition imperiling the life and limb of its servants in the use for which it was designed. This condition is a mournful fact when shown to have been the cause of appellee's mangled limbs and dreadful

suffering. This fact was alleged as negligence, and proof of it, without regard to how or in what manner appellant permitted it to occur, established prima facie the breach of a duty appellant owed the appellee as its servant which rendered it liable for the injuries sustained in consequence. If the condition of the step did not arise from the failure of appellant to exercise ordinary care to keep it fixed and securely fastened, it, being charged with knowledge of such care as it exercised, should, when appellee alleged and proved facts making a prima facie case of negligence, have shown on its part the exercise of ordinary care to prevent the conditions which caused the accident. The court did not err in overruling the special exception to the petition. Railway v. Templeton, 87 Texas, 42; Railway v. Brinker, 68 Texas, 502.

2. The charge upon the measure of damages is such as has been repeatedly approved by this court in cases where writs of error have been refused by the Supreme Court. After instructing the jury that if they should find for plaintiff, and believe from the evidence he was injured as alleged in his petition, then they should allow him such sum as they believe from the evidence will compensate him for the injury sustained, it simply enumerates certain elements of damages they may take into consideration in determining what sum of money will compensate him for the injury sustained.

3. While the verdict is a big one, we are not prepared to say, in view of appellee's age, the amount of money he was earning before he was hurt, the nature and permanency of his injuries, his intense and continued suffering, and his incapacity to pursue his vocation, that it is excessive. The judgment is affirmed.

Affirmed. Writ of error refused.

GALVESTON, HARRISBURG & SAN ANTONIO RAILWAY COMPANY V.

THOMAS D. JONES.

Decided April 16, 1902.

1.-Negligence-Pleading and Proof-Defective Car.

Under an allegation by plaintiff in an action for personal injury that defendant had negligently permitted the handhold on the side of a car to become defectively and insecurely fastened, evidence was admissible to show that the wood in which the end of the handhold, which pulled out, was inbedded, was not sound. 2.-Same-Evidence.

That a witness was not present at the accident and did not disclose the source of his information as to the condition of the car, did not render his testimony as to such condition inadmissible as being hearsay. 3.-Same-Inspection of Car-Competency-Question for Jury.

Although defendants car inspector testified that he had been inspecting cars for many years and that no other accident had ever occurred from a defect in a car inspected by him, and this was uncontradicted, yet as the handhold of

the car in question did pull off while being ordinarily used a few hours after his inspection, the question of his competency was properly submitted to the jury. 4.- Personal Injury-Measure of Damages.

In an action for negligent personal injury the court properly charged that the jury might allow plaintiff such sum as would compensate him, taking into consideration mental and physical pain suffered, consequent upon his injuries, and his diminished capacity to labor and earn money in the future, and the charge was not objectionable as allowing double damages.

Appeal from Bexar. Tried below before Hon. J. L. Camp.

Baker, Botts, Baker & Lovett and Newton & Ward, for appellant.

Perry J. Lewis and H. C. Carter, for appellee.

FLY, ASSOCIATE JUSTICE.—This is a suit for damages alleged to have accrued through the negligence of the railway company in furnishing to appellee, its employe, a defective appliance with which to perform the labor incumbent upon him by virtue of his employment. A trial by jury resulted in a verdict and judgment for $15,000 in favor of appellee.

From the statement of facts we find that appellee while climbing the side of a freight car to reach the top, where his duties as brakeman called him, was precipitated to the ground and permanently and seriously injured by the handhold on the car pulling out. The handhold was in such a defective condition as to cause the fall and consequent injuries of appellee, through the negligence of appellant. Appellee was 28 years of age when injured, was strong and healthy, and was earning from $80 to $90 a month as a brakeman.

The first assignment of error complains of the admission in evidence of the answer of M. L. Fitch to an interrogatory, on the grounds that appellee only read a portion of the interrogatory and read the answer to the entire interrogatory, and because the answer was hearsay, and because the interrogatory presupposes that other questions had been answered in a certain way, and because there was no pleading authorizing testimony as to the condition of the wood to which the handhold was attached. The petition alleged that appellant had negligently allowed and permitted the handhold to become defectively and insecurely fastened to the car, and the allegation is directly responded to by the evidence that “the wood in which the end of the handhold, which pulled out, was imbedded, was not sound.” If the wood on the car to which the handhold was attached was so decayed that it would not hold screws put through the handhold, this was evidence that the handhold was defectively and insecurely fastened to the car. The first part of the interrogatory complained of was so framed that the witness was to answer provided the witness had answered previous interrogatories affirmatively. There is nothing to show that they were not so answered, but in deference to appellant's objections, the first part of the interrogatory was omitted by appellee and only the last portion was read. The witness, as a matter

of course, answered the whole interrogatory, and the omission of a part of it could not cure any well-founded objection to it, but no objection to the interrogatory of any character is set forth in the bill of exceptions, unless it is held to be embodied in the objections to the answer, which are not tenable. The answer was not hearsay, although the witness may not have been present when the accident occurred. There was no question as to the identity of the car, and however the witness learned its identity it would not render his testimony as to the condition of the handhold hearsay. He swore he saw it and stated its condition. No attempt was made by appellant to contradict his statement. It is insisted by appellant that the answers to the interrogatories preceding the one of which complaint was made were different from what the person who propounded the interrogatories expected. We do not know what the preceding interrogatories were, but the answers of the witness show that he was a brakeman on the train and in a position where he could have examined the car before taken from the vicinity where the accident occurred. How the witness knew the handhold was the one that gave way when appellee caught hold of it, does not appear, and if appellant desired to know his source of knowledge it might have been elicited on the cross-examination.

The court instructed the jury as follows: “You are further charged that even though you may find that said handhold was insecurely fastened and that plaintiff was injured by reason thereof, yet if you further find that said defendant company appointed competent inspectors who inspected said car before the same left the yards of the company at San Antonio, and that the defects in the fastening of said handhold, if any, were not apparent and could not have been discovered by said inspectors by the exercise of ordinary care, then you are charged that the plaintiff, by reason of his employment, assumed the risk of said defect, if any, in the fastening of said handhold, and you will find your verdict for the defendant."

Appellant objects to the charge because it submits the question of competency of the car inspector to the jury, it being the contention that the uncontroverted testimony proved that he was competent and the court should have so informed the jury. It is true that the inspector swore that he had been inspecting cars for many years and that no other accident had ever occurred from a defect in a car inspected by him, but the jury were not bound to accept his testimony as true, but had the right to weigh his testimony in the light of the character of inspections he swore he had given, and in the light of the fact that four or five hours after he had made the inspection a handhold pulled off the car from the weight of an employe who was endeavoring to climb up by it. The inspector also swore that he had made no particular inspection of the car in question on which the defective handhold was found, and it appeared from his testimony that he had a helper and together they inspected a freight train in twenty minutes. The inspector swore he did test the handhold in question, and then said that he would

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