It is claimed that the court erred in refusing to receive a verdict of the jury which found for the appellee $25 actual and $1,500 exemplary damages, and in not rendering judgment thereon. This court is not informed in any manner which we can recognize that any such action as is complained of was ever taken. The only manner in which the action of a district court can be brought before this court for revision upon appeal is by bill of exceptions, and statements of fact, made and certified as the statute requires, unless the matter sought to be revised appears in the record of the court.
In the record of this cause it does not appear in the manner above indicated that any such action was taken in the district court as this court is now asked to revise; but if the paper which is made a part of the motion for new trial, and purporting to be signed by the judge of the district court, was in form and substance a bill of exceptions, it is not perceived that it could alter the case; for it does not appear therefrom that the appellant, at the time the action was taken, objected to the same; and in the absence of such showing, it would be presumed that the action of the court was by consent of parties, who are to be presumed to have been in court at the time *170the matter may have occurred, and their subsequent expression of dissatisfaction through the motion for new trial would not justify a contrary presumption.
We do not wish, however, to be understood as intimating that the action of the court "was erroneous, even if it was as claimed by the appellant. I
The seventh paragraph of the charge of the court, assigned as error, is a clear and concise statement of the law applicable to the case, and does not, as insisted by counsel for appellant, assume that an injury was inflicted upon the appellee, but leaves that, as well as all other questions, to the judgment of the jury upon the evidence. The same is true of the sixth paragraph of the charge, in which the jury were told, in effect, that it was their duty, from all the testimony, to determine whether, under the charge, as negligence therein had been defined, such acts and omissions of the appellant as were shown by the testimony to have existed, constituted negligence. If the sixth paragraph of the charge is construed alone and Avithout reference to the other parts of the charge, it could not be held that it assumed any fact, or Avas upon the weight of evidence. But it Avould not be proper to construe one paragraph of a charge alone; the whole charge should he considered; and when thus considered, the charge of the court given in this cause is an admirable exposition of the la\v of the case.
If, however, the court had assumed that the appellee was injured, and that there were omissions of duty upon the part of the appellant, under the admitted or uncontroverted evidence in the cause, an injury was inflicted upon the appellee, and there were omissions upon the part of the appellant, the extent of injury and extent of omissions were controverted questions; but the fact of injury and of omissions Avas not controverted.
In the case of Wintz v. Morrison, 17 Tex., 387, Wheeler, J., said:
“ The rule which forbids the judge to charge upon the weight of evidence does not require or authorize him to assume as doubtful that which is clear and indisputable, or to assume hypotheses at variance with the certain fact. Where the evidence to a fact is positive and not disputed or questioned, it is to be taken as an established fact, and the charge of the court should proceed upon that basis. It is only where there may be doubt, that the jury are required to Av,eigh the evidence, and it is then only that the rule applies that the court shall not charge upon the weight of evidence.”
It is claimed that the damages awarded by the jury are excessive. Whether the damage be excessive or not depends upon the amount *171of injury received by the appellee. Various injuries were alleged, some of which wei’e trivial in their character; but others of the most serious character were alleged; injuries which may impair the ability of the appellee to labor through his entire life, and from which pain may become his cpnstant companion. Whether these injuries were inflicted upon the appellee by the negligence of the servants of the appellant, or not, was fairly submitted to the jury, and there being evidence in the case from which they could have found the affirmative of the proposition, their finding in effect is that the injuries which the appellee alleges that he received in manner stated in his petition were the result of the negligence of the appellant. Such being the case, we cannot say that the damages are excessive.
The question was one peculiarly for the jury, and unless, in view of the evidence, the damages were so excessive and disproportioned 8 to the injuries alleged as to indicate that the verdict was the result of passion, prejudice or partiality, we would not be authorized upon that ground to reverse the judgment. In such cases as the present, presenting as they do many and varied elements which go to make up the measure of damages, there is no certain fixed rule by which this court can nicely weigh and adjust the matter, as may be done in some other cases in which the elements of damage and measure of damage are fixed by certain and unbending rales.
There being no error found in. the record requiring a reversal of the judgment, the same is affirmed..
Affirmed.
[Opinion delivered April 28, 1882.]