Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 374
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374 TEX. & PAC. R'Y Co. v. IARDIN. [Tyler Term,
Opinion of the court.
and discovered by the use of reasonable and careful observation and
diligence such as a prudent person, having a due regard for the rights
and safety of others, should exercise in like circumstances, the jury
should find for the plaintiff."
It is insisted that this was a charge on the weight of evidence, or
rather that the charge assumed that there was a defect in the crossties.We do not think that this part of the charge could have been understood
by the jury to indicate that in the opinion of the court
there was a defect either in the rail or cross-ties, and especially so if
the whole charge be considered.
The court had already submitted to the jury whether the injury
resulted from defective cross-ties or rail, and had explained what
character of defects in either would impose on the appellant liability
or relieve it therefrom, and in the charge given could not have
been understood to have meant more than that, if the jury found
from the evidence that the defects before spoken of in the charge
really existed, then they would find for the plaintiff if they believed
the injury resulted from defects which were known to the appellant,
or which might have been known by the exercise of proper care.
Both clauses in this charge left the question of defect, or not, to the
Jury.
There was no error in the refusal of the court below to give the
second charge asked by the appellant, to the effect, if the jury found
that the disabled condition of the appellee's arm was due to his own
inattention, they might take this into consideration in estimating
the damage.
This would have been proper if there had been evidence showing
inattention on the part of appellee, but we find no such evidence in
the record; hence, the court correctly refused the charge.
When there are no facts on which to base an inquiry, a charge
which would raise the inquiry would be misleading.
The testimony of Drs. Jackson and Allen may have been important
to the appellant, but the requisite diligence was not used to procure
their testimony, and it does not appear in the application for a
new trial or elsewhere what their testimony would have been if
present.
The verdict and judgment are large, but the injuries received by
the appellee and his wife were of a serious character; and there is
much in the record evidencing that the verdict was the honest, deliberate
finding of the jury on the facts before them. In such case,
to set aside their verdict, which the court below has refused to do
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/396/: accessed May 8, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .