Appellee brought this suit to recover damages for personal injuries received by him in a wreck of one of defendant's trains, on which he was being conveyed as a passenger, at a point between Tyler and Troupe.
The petition charges that the road bed between the two places named, as well as at the place of the wreck, was out of order, in bad condition, and unsafe for the transportation of passengers thereon; that the ties at the place of the derailment were old and rotten, the iron rails were worn and broken, and the track was out of level, all of which contributed to and caused the wreck.
The petition charged that plaintiff's expense for medical attention, to which he was subjected in consequence of his injuries, amounted to one hundred dollars; that the value of time lost by him amounted to five hundred dollars, and that by his physical and mental suffering he had been d'amaged ten thousand dollars. He prayed for twenty thousand dollars as exemplary damages. The petition contains also the following additional allegations:
“Plaintiff further charges that by said derailment he was put to great inconvenience and delay; that he was expected at the city of Tyler on the said 26th day of December, 1887, but was unable to reach said city; that the weather was bitterly cold, and the place of the accident was not near any house, and that be was forced to walk back to the town of Troupe for shelter, and suffered greatly thereby; and that by reason of said inconvenience and delay he was damaged in the further sum of five hundred dollars."
The court in its charge to the jury directed them to take into consideration the injuries of defendant on account “ of mental pain and physical suffering, his loss of time, medical bills, and his inconvenience.”
The defendant specially excepted “to all allegations in the petition claiming five hundred dollars special damages for inconvenience and delay, because they are vague and do not show with sufficient certainty facts that entitle plaintiff to recover such damages."
The exception was overruled by the court.
*80Over the objection of defendant, plaintiff was permitted to prove by many witnesses that the International & Great Northern Railroad bed and track between Troupe and Tyler, and also between Tyler and Ríndale, at and before the time of the wreck, was in bad condition; that many ties were rotten and the iron greatly worn, and that several wrecks of freight and other trains had occurred between said points.
The bill of exceptions taken by defendant to the ruling states that this evidence was offered by plaintiff to show gross negligence under his claim for exemplary damages.
At the request of defendant’s counsel the court charged the jury “not-to find exemplary damages against defendant merely because of the alleged bad condition of the railroad bed and track, and not to consider any evidence of the bad condition of the track and road bed at other places than where the wreck occurred, if the wreck was caused by a broken rail.” The jury found a verdict for actual damages only.
The petition charged the damages claimed resulted from the “inconvenience and delay,” and the charge directed the jury to consider “inconvenience” as one of the grounds of damage. The count does not state-a cause of action with the required precision, and the exception should have been sustained, and the charge referring to it ought not to have been given.
The court at the request of the defendant charged as follows: “To entitle plaintiff to recover for future damage there must be a reasonable certainty as to such future damage—a mere probability of its occurrence-is not enough.”
Defendant asked the court to give the following as part of the same charge: “Future damages can only be awarded when it is rendered reasonably certain from the evidence that such damages will evidently and necessarily result from the original injury;” which the court refused. We think the discrimination made by the court was correct.
Dr. Walker, a witness for plaintiff, among other things, testified as follows: “I am positive plaintiff is permanently injured in his spine, and can demonstrate it to the jury. He has a nervous twitching in his right eye, and the eye itself indicates some special affection. I examined his eye before and found the trouble, and he assured me he had never suffered with sore eyes or been injured in his eye. He will never get well. He will constantly grow worse.”
This witness had on a previous examination given strong testimony to the effect' that plaintiff had suffered a permanent spinal injury, while other expert witnesses had expressed opinions, to some extent challenging the correctness of his conclusion.
This evidence was admitted without objection, but afterwards defendant’s counsel requested the court to charge the jury to not consider “evi*81dence oí symptoms of injury not testified to by plaintiff, but stated by him to Dr. Walker.”
We think the evidence was improper, and if it had been objected to when offered it ought to have been excluded. The objection, however, came too late when interposed for the first time in the form of a charge to the jury, and the court properly refused to give the charge.
The defendant requested the court to charge the jury not to include in their estimate of actual damages any expense for attorney fees or expense incurred by plaintiff in attending court to prosecute his suit.
Such damages were not alleged in the pleadings nor included in the evidence, and a charge upon the subject Avas properly refused.
It is claimed that the verdict for $7500 actual damages is excessive. As the cause will be reversed upon another ground, and as neither the verdict nor the evidence may on another trial correspond with AA'hat it was upon the trial under review, we deem it improper to discuss this assignment.
The evidence Avith regard to the general condition of the International & Great Northern Bailroad, on Avhich the wreck occurred, between Troupe and Lindale ought not under the circumstances of this case to have been admitted upon the issue of exemplary damages, or for any other purpose.
The question of the liability of the defendant for damages of any kind should have been confined to the condition of the road at the time and place of the occurrence, and all issues as to the condition of the road elsewhere, as well as of previous wrecks elsewhere, ought to have been carefully kept from the jury, in whatever form they were presented. Railway v. Johnson, 72 Texas, 95; Railway v. Shuford, 72 Texas, 165.
As will be seen by the charge we have quoted, all evidence of this character was excluded by the charge of the court from the consideration of the jury for all purposes.
While we think the introduction of such evidence, and especially of such a mass of it as we find in the record, was highly improper, yet, if the admission of this evidence was the only error shown by the record, then in vieiv of the fact that it Avas admitted only on the issue of exemplary damages, and as the jury were instructed not to consider it under that issue, and as the jury gave no verdict for exemplary damages, Ave would not reverse the cause for that reason.
For the errors committed in overruling defendant’s exception to the petition, and in giving the charge on the same subject, the judgment is reversed and the cause remanded.
Reversed and remanded.
Delivered November 12, 1889.