— Our opinion is that the court did not err in refusing the third special instruction asked by the defendant. In so far as the charge asked was applicable to the case in hand, it was in substance given in the general charge.
There is no doubt that the company has the right to use its own track; and when the train is in motion the engineer, seeing persons near the track ahead of him, might safely presume that they would keep out of the way. But in this case the injury was inflicted in a town. It occurred in a street along which many people were in the habit of passing, so that great care and watchfulness were required of the company’s servants. Before starting the engine across the street, it was certainly their duty to give timely warning as well as to look ahead and see that they were not likely to hurt persons who were passing by. The evidence, in our opinion, shows that those in charge of the engine were guilty of negligence.
Whether there was contributory negligence on the part of the plaintiff was fairly left to the jury, and their verdict must be treated as decisive of that question.
We come now to the tenth special instruction which was asked and refused. So much of the special charge as relates to compensation for plaintiff’s property that was damaged or destroyed was properly refused, Because it is admitted that the general charge on that subject was correct.
As to that part of the charge asked and refused which refers to the pain inflicted upon the plaintiff, it is enough for us to say that it is by no means an improvement upon the charge given on the same subject by the court.
Another portion of the special charge which was rejected is as follows: “ In the absence of proof of the value of the labor of his arm, and of the value of his time while it was useless or disabled, and of what he could make by its use in his occupation or calling before its injury, and by such use in its present condition, you cannot include in your estimate of damages any sum for pecuniary damage done to him by reason of the loss of the use of his arm, either totally or partially, in his occupation or employment in life.”
In the first place, ad the entire charge of the court has not been brought before us, it would seem reasonable to presume that the court had given a proper charge upon this part of the case, if any should have been given at all.
*155But as there was no evidence introduced as to the value of the plaintiff’s time, labor, etc., it is altogether probable that the court ■diql not submit that issue to the jury.
It is to be presumed that the jury found their verdict upon the issues actually submitted. And we hardly think that it was necessary for the couft to instruct them not to find upon a matter which was not submitted.
Appellant, however, insists that the verdict was excessive; but we cannot say that it was so manifestly excessive as to warrant a reversal of the judgment. If we leave out of view entirely the damage to the plaintiff from loss of time, diminished capacity for labor, etc., still the evidence shows that the plaintiff’s life was placed in great peril; that he was very seriously hurt; that his injuries are permanent and likely to last through life; that he suffered great pain, not ■only at the time, but for a great while afterwards; and though the pain has been assuaged, it has not been relieved, and may not be ■entirely relieved for an indefinite length of time.
Under these circumstances we are not able to say that the judgment should be reversed, and we think it should be affirmed. H. & G. N. R. R. Co. v. Randall, 50 Tex., 254.
Affirmed.
[Opinion adopted February 27, 1884.]