—This is an action brought by appellee to recover of appellants damages for personal injuries received by him while a passenger on the train of the Missouri Pacific Railway Company while being operated on the road of its codefendant. This is the second appeal by the defendants in this suit. The facts of the case are fully shown in the former opinion, which is reported in 72 Texas, 233.
Upon the subject of the release which was executed by the plaintiff to the defendants, the court gave the following instruction, to-wit:
“ That is, gentlemen, if the plaintiff was insane of unconscious and incapacitated to contract at the time he signed the release, under the rules above laid down after the said Brazzil became conscious that he had signed such a release and was informed of its nature and character, and that he had received said money and paid it out on his debts with a knowledge of where said money came from, and that he had received it from defendants in compromise of and in release for the injuries he has received, and he did not promptly disaffirm the contract, but acquiesced in same, then you will find for defendants in favor of said release.”
This charge is complained of “ because the same does not instruct the jury in that paragraph as to the effect of a ratification of said release, and charges the jury that the validity of the same depends entirely upon the consciousness of the plaintiff at the time of said release;” and also because “the charge is misleading, in that it makes a knowledge on the part of the plaintiff at the time he used and paid out said money necessary to a ratification on his part, when the contract is a valid one, even though he had no such knowledge, if after he regained consciousness the same was not promptly disaffirmed by him.”
The only evidence of any ratification of the release consisted in the fact that the plaintiff had in some manner disposed of the money paid him in consideration of the release, and we think the instruction is strictly in accordance with the law as laid down by this court upon the former appeal, and pointedly presented the issue of fact made by the testimony.
The two important questions upon this branch of the case were: Was the plaintiff mentally capable of contracting when he signed the release? and (2) Did he expend or retain the money paid him after he became conscious of the source from which he obtained it, and after he was ■capable of understanding the nature and consequences of the contract he had made? The charge is not subject to the objections urged against it.
The following charge is also assigned as error: “ But if at the time 'he signed said release he was unconscious and not in his right mind, this would defeat the release; or if at the time he signed said release he was *317suffering from physical pain, fevers, and mental anguish to such an extent as to incapacitate him to comprehend the character, extent, and consequences of the contract, then this would defeat the release.”
We understand the objection to the charge to be that it does not in the same paragraph, or at least in the same connection, charge the jury as to the effect of a ratification of the release. An examination of the entire instructions upon this branch of the case discloses that the jury were properly charged both as to the law affecting the validity of the release and as to the facts necessary to be established in order to show a ratification in case it was invalid, and in such a manner that the jury were not misled. It is not necessary nor is it practicable in every charge to present every phase of a case in one paragraph. Nor does it conduce to clearness to attempt to do so. The charge given by the court was, we think, sufficiently clear and explicit upon the effect of a ratification of the release.
It is also complained that the verdict is contrary to the law and evidence both upon the issue of the sanity of the plaintiff at the time he executed the contract and upon that of a ratification. The large sum awarded as damages by the verdict of the jury has demanded at our hands a very careful consideration of the testimony presented by the record. It is voluminous and conflicting, and a discussion of it here will subserve no useful purpose. It is sufficient to say that there is evidence to support the verdict in the particulars complained of in the assignment under consideration, and that the finding is not against such an apparent preponderance of evidence as under the well recognized rule of this court to justify a reversal of the judgment.
It is also insisted that the damages assessed by the jury are excessive and that no exemplary damages should have been awarded. But there was testimony tending strongly to the conclusion that as a result of his injuries the plaintiff has been rendered a wreck both in mind and body. He is subject to epileptic fits, and his physical and mental condition is such as to render him unfit to labor. He was before the accident an industrious and able bodied mechanic. His sufferings must already have been great, and in all probability will continue so long as he shall live. Under such circumstances we can not say that the amount of the actual damages awarded is the result of passion or prejudice in the minds of the jury, and therefore can not reverse the judgment on account of the amount of the recovery only.
But in regard to the exemplary damages the case is different. The testimony it is true shows that the road was in very bad condition. There was old iron and rotten ties in abundance upon the track. But on the other hand the accident occurred during an unusual spell of weather— not such it is true as to exonerate the appellants from liability for the accident, but such as to have contributed largely towards bringing it about. *318The company was putting the road in a better state of repair at the time the accident had occurred. Many new ties had been put in and new rails had been supplied. The time of the trains had been lessened to ten miles per hour. It was negligence not to have a better road bed and track, hut these circumstances show that there was not such an utter disregard of the safety of persons who were being carried by the appellants’ trains as will in our opinion justify the recovery of large exemplary damages in ad•dition to the large verdict for actual damages awarded by the jury.
If the plaintiff sees fit to remit the exemplary damages the judgment will be affirmed, otherwise it will be reversed and remanded.
Affirmed.
Delivered October 21, 1890.
Motion for rehearing was refused.