Int. & G. N. R. R. v. Stewart

Citations

• 57 Tex. 166
• 1882 Tex. LEXIS 115

Syllabus

<p>1. Practice — Bill of exceptions.— A jury returned into court with a verdict. The district judge, upon examining it, refused to receive it. The jury retired, and again came into court with another verdict, which was received. The district judge gave to counsel of the losing party a statement certifying to the terms of the first verdict. On motion for new trial, the refusal to receive the first verdict was urged as a ground for new trial. On appeal, held,</p> <p>(1) The action of the trial judge was not before the supreme court for revisal — not appearing by bill of exceptions.</p> <p>(2) If the certificate of the judge to the terms of the verdict, etc., be held to be in effect a bill of exceptions, yet as it was not shown that objection was made at the time to the action of the judge, that action would not be revised.</p> <p>(3) But the action was not condemned as error, had it been before the court on appeal.</p> <p>2. Charge of court.— See charge approved as not upon weight of testimony.</p> <p>3. Same.— The whole charge should be taken together to determine whether appropriate. Bach clause must be taken in connection with the other parts.</p> <p>4. Same.—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.</p> <p>5. Same — Case approved.—Wintz v. Morrison, 17 Tex., 372, approved.</p> <p>6. Damages.—The amount of damages is peculiarly for the jury; and unless, in view of the evidence, the damages are so excessive and disproportioned to the injury alleged as to indicate that the verdict was the result of passion, prejudice or partiality, the judgment will not, on appeal, be set aside.</p>