This is a suit for damages brought by appellee, and this is the third time it has been before this court. 7 Texas Civ. App. 429[7 Tex. Civ. App. 429]; 26 S.W. Rep., 1117, and 54 S.W. Rep., 651. The last trial resulted in a verdict in favor of appellee for $30,000, of which $10,000 was voluntarily remitted, and judgment was rendered for the sum of $20,000.
There are facts to sustain a conclusion that appellee was seriously and permanently injured through the negligence of appellant. Appellee, through the negligence of Ross, who was an incompetent servant, and whose incompetency was known to appellant, was caught between two cars, and his head mashed so that blood spurted from his ears, and one of his eyes was forced from its socket and hung upon his cheek; that unconsciousness resulted for two or three weeks; that appellee was in bed for many months; that his skull was fractured and portions of it taken out, and appellee had been changed from a robust, intellectual man into a man weak in mind and body, who for ten years has endured much suffering and is permanently disabled. His hearing and seeing have been rendered defective by the injury, and portions of the brain are so exposed that a slight blow might produce death or insanity. Appellee was earning $2.75 a day when injured, but since has been incapacitated for active labor, mental or physical.
The first assignment of error complains of the following question and answer asked C.L. Harris, and answered by him: "Do you know the reputation borne by A.A. Ross for competency or incompetency on or before the 30th day of November, 1890, as a locomotive fireman among *Page 181 railroad men in San Antonio and other places, and if yes, state what was his reputation on said date?" "I know the reputation borne by A.A. Ross on and before the 30th day of November, 1890, as a locomotive fireman among railroad men in San Antonio and other places, only from having heard it discussed on a number of occasions." The objections to this question and answer were that they did not relate to the general reputation of Ross, but pertained alone to reputation, and that the witness had not qualified himself to testify as to general reputation.
The reputation inquired about was that among railroad men not only in San Antonio but other places, the only class of men upon whose opinion the reputation of a locomotive fireman could properly be based, and a reputation among that class of men would be a general reputation. The witness swore to a knowledge of that reputation, and stated further that he had obtained the knowledge of the reputation by hearing them discuss it on a number of occasions. Suppose the question had been as to general reputation, that reputation must have been made among railroad men, for they were his associates, and no one else would be in a position to know what constituted a competent or incompetent fireman; and it would seem clear that when the question was as to the reputation among railroad men, and the answer given as to the reputation among railroad men, it necessarily covered all the reputation the fireman had.
The second assignment of error refers to a bill of exceptions as its basis, but an inspection of the bill of exceptions shows that the questions and answers do not refer to the reputation of Ross as stated in the assignment of error, but the questions are addressed to the knowledge that the witness had of the competency or incompetency of Ross as a fireman. The objection to that evidence is not tenable. The witness had already testified without objection to the same facts objected to, and if this had not waived any right to object, the witness had qualified himself as an expert, fully competent to give an opinion on the fitness of the fireman to perform his duties. Terrell v. Russell, 16 Texas Civ. App. 573[16 Tex. Civ. App. 573].
The witness Doane qualified himself to testify as to the competency of the fireman, and the testimony was admissible. Testimony of the same character from other witnesses went unchallenged to the jury, although the objection that the evidence was merely the opinions of witnesses was as applicable thereto as to that of Doane, and appellant has thereby-lost the right to complain. It was alleged in the petition that appellee had been compelled to pay $100 to physicians, $250 for medicines, and $150 for nurses' hire, but appellee swore that he had paid on medical bills about $750, and this was objected to because there was no allegation to support it, and because the amount was larger than named in the petition. There was an allegation that medical bills were incurred by reason of the injuries inflicted by appellant, and it can not be reasonably contended that a party is prevented by an allegation of a certain amount from swearing the truth as to expenditures. The jury in such a case could be required to find only for some amount within the maximum alleged. In the charge, amounts paid for medicines, doctors, *Page 182 or nurses were not included in the damages to be found by the jury. In view of a remittitur of $10,000, it would seem that any excess of verdict for medicines or medical bills was cured.
The testimony of M.J. Mulligan at a former trial was admitted in evidence over the protest of appellant, the objection being that it was irrelevant and immaterial. It is stated in a qualification of the bill of exceptions to the admissibility of the testimony that while the evidence was admitted it was not read to court or jury, and there is nothing in the record indicating that the testimony, which was in writing, was carried by the jury when they retired to consider their verdict. It can not be inferred that the mere ruling of the judge that the testimony was admissible could have injured appellant, when the jury was not made acquainted with the facts permitted to be introduced. The testimony, however, is included in the statement of facts, and an examination shows that the testimony does not differ in any material matter from the testimony of the witness on the trial, and while it should have been excluded, no injury appears to have resulted from its admission, and its admission would not be ground for reversal. Railway v. Hume, 87 Tex. 211 [87 Tex. 211].
The seventh assignment of error complains of the refusal of the court to allow Dr. Graves to testify why appellant would not take appellee back into its service. The bill of exceptions upon which the assignment is based shows that Dr. Graves did testify as to why the railroad company would not take appellee into its service, and the only part of the evidence that appears by the bill of exceptions to have been excluded was what the railroad officials told the witness. From the statement of facts it appears that even that part of the testimony was not excluded, and the statement of facts was agreed to by appellant.
The eight assignment of error can not be sustained, for the reason that both the bill of exceptions and statement of facts show that the evidence desired to be elicited by a leading question was given by the witness in answer to legitimate questions.
It was not error to refuse the special charge embodied in the ninth assignment of error. There was testimony that strongly tended to prove that Mulligan was a vice-principal of appellee, and to have instructed the jury that he was not, would have been a gross usurpation of the prerogatives of the jury.
The tenth assignment of error is to the effect that the court erred in refusing to give a certain charge requested by appellant, as follows: "Defendant asks the court to charge the jury that before plaintiff can recover in this case he must prove by a preponderance of evidence that he complained to M.J. Mulligan of the incompetency of the fireman, A.A. Ross; that said Mulligan promised to remove said fireman; that said fireman was incompetent; and that said plaintiff did not know that said fireman had not been removed from the engine when he was hurt; that said Mulligan had the power and authority to hire and discharge said fireman, and that plaintiff was injured by reason of the incompetency of said fireman." The court had already charged the jury correctly on *Page 183 every point presented by the requested charge, and it was not error to refuse to give it.
It was not error to refuse the charge contained in the eleventh assignment of error. In the original petition it had been alleged that appellee complained of the fireman to one O'Toole, and in the second amended petition it was alleged that the complaint was not only made to O'Toole but to Mulligan. The addition of the allegation as to Mulligan did not set up a new cause of action. The damages are sought for the same acts of negligence as in the original petition, and that pleading had the effect of arresting the statute. Southern Pacific Co. v. Wellington, 57 S.W. Rep., 856, and authorities therein cited; Oil Co. v. Stewart, 17 Texas Civ. App. 59[17 Tex. Civ. App. 59]. None of the Texas authorities cited by appellant sustain its contention. In the case of Bigham v. Talbot, 63 Tex. 271, cited by appellant, it is said, in sustaining the plea of limitation to the cause of action: "If, however, there had been any allegations in the first amended petition in any way retaining, even as part of the cause of action therein asserted, that which was asserted by the original petition, and afterwards reasserted by the second amended petition, that would have been sufficient to prevent the running of the statute after the original petition was filed." Can it be consistently contended that no part of the original cause of action is contained in the second amended petition? It is not so contended, but it is contended that the addition of the pleadings, as to Mulligan changes the cause of action. The contention is without merit. It may be noted in this connection that only the original petition and second amended petition are before this court, and there is nothing in the record to show the date of the first amended petition, and the presumption would prevail that it was filed in time and contained the proper averments to meet the objections of appellant and sustain the ruling of the court.
The court properly refused to instruct the jury that appellee was estopped from alleging and proving that he had made complaint of the incompetency of Ross to Mulligan by reason of a motion for rehearing filed in this court on a former appeal and an application for writ of error to the Supreme Court. The case of Portis v. Hill, 14 Tex. 74, and 30 Tex. 563 [30 Tex. 563], is cited as sustaining the novel proposition contained in the requested charge, but there is nothing in those decisions to support the contention. The admissions in the motion for rehearing and in the application for writ of error would be evidence that might tend to prove the falsity of the testimony of appellee as to his complaint to Mulligan, but does not contain anything that would constitute an estoppel.
The thirteenth assignment of error contains statements as to arguments made by counsel and other matters that are not supported by the record, and which can not be considered by this court. The conclusions of fact dispose of the remaining assignments of error.
The verdict was a very large one, even after a remittitur of $10,000, but the evidence introduced by appellee established that he has been transformed, by the injuries inflicted on him, from a robust young man *Page 184 into a pitiable wreck in mind and body; that for ten years he has suffered intensely, and we do not feel authorized to hold the verdict excessive, as reduced by the remittitur. It is not now an open question as to the propriety of the remittitur in the District Court. Railway v. Syfan, 91 Tex. 562; Railway v. Johnson, 24 Texas Civ. App. 181[24 Tex. Civ. App. 181]; 58 S.W. Rep., 622.
The judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.