Baker v. Williams

213 S.W. 986, 1919 Tex. App. LEXIS 877

• Court: Court of Appeals of Texas
• Decided: June 14, 1919
• Docket: No. 6208.
• Status: Published

Opinion

MOURSUND, J.

We adopt .appellant’s statement, as follows:

“This is the second appeal of this case, the first appeal being reported in 198 S. W. 808. Appellee originally sought to recover of appellant, as receiver of the International & Great Northern Railway Company, the sum of $543.50 because of personal injuries alleged to have been inflicted upon him on the night of October 15, 1915, at the station of Hutto, Tex., through appellant’s negligence. Upon appeal from a judgment against appellant for $250, such judgment was reversed, and the cause remanded for new trial, whereupon appellee filed his second amended petition, which is substantially identical with his original trial pleading, except that his allegations of damages were increased to the sum of $793.50. Appellant, also by amended pleading, answered with general and special demurrers, general denial, and special pleas that appellee, when he claims to have sustained his injuries, was at most but a mere licensee or volunteer, he having gone upon appellant’s premises at Hutto at an unreasonable and untimely hour, and also, in the alternative, that he was guilty of both independent and contributory negligence. Trial before court and jury the second time terminated on May 7, 1918, in a verdict against appellant for the sum of $543.50, with legal interest thereon from that date, together with costs of suit, in accordance with which verdict judgment was duly entered.”

[1] Twenty-nine assignments of error are presented. It appears, however, that the 29th, wherein complaint is made that the verdict is contrary to the great preponderance of the evidence, was filed long after the motion for new trial was overruled, which is the basis for the other assignments of error. We do not understand that an assignment thus filed can be considered unless it relates to something which took place at such a time as to make it impossible to present it in the motion for new trial.

[2] In the main, the contentions are the same as were made upon the former appeal. It is contended that the evidence differs in material respects, but we are unable to agree with such contention. It is, in substance, the same as on the former trial. The Third Court of Civil Appeals held upon the former appeal that it was sufficient to support a judgment. The two special charges .given at plaintiff’s request were in effect approved upon that appeal, as the assignments attacking same were not sustained. Upon this appeal the court in his charge gave a correct instruction on the theory of the case which was held by that court should have been submitted. The decision upon the former appeal was the law of the case; and, the trial court having followed the instructions of the appellate court, we decline to enter into a reconsideration of the questions then presented and decided. Moore v. Chamberlain, 152 S. W. 195.

There is no merit in assignments 26 and 27, wherein complaint is made of admission of certain evidence and of argument of counsel.

[3] By the twenty-eighth assignment complaint is made that the verdict is excessive. The jury allowed the sum of $500 for bodily pain and anguish resulting from the sprain of the ankle. We conclude that this sum is excessive to the extent of $250. The judgment will be reversed, and the cause remanded, unless within 15 days a remittitur be entered of $250. If such remittitur is entered, the judgment will be affirmed for the remainder.

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