
    TRINITY & B. V. RY. CO. v. BLACKSHEAR.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 22, 1913.
    Rehearing Denied Dec. 20, 1913.)
    1. Bailroads (§ 396) — Injuries Near Track — Negligence — Bes Ipsa Loquitur Doctrine.
    The res ipsa loquitur doctrine will raise a presumption of negligence by defendant railroad company, where plaintiff while plowing in his field about 50 feet from the track was struck by a spike “picked up” by a passing freight train and thrown with great force into plaintiff’s field.
    [Ed. Note. — For other cases, see Bailroads. Cent. Dig. §§ 1341-1343, 1357; Dec. Dig. § 396.]
    2. Bailroads (§ 364) — Injuries Near Bight oe Way — Duty oe Company.
    A railroad company was hound to operate its train so as not to interfere with plaintiff’s enjoyment of his premises near the right of way by casting missiles from the train and injuring plaintiff.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 1252, 1253; Dec. Dig. § 364.]
    3. Damages (§ 208) — Jury Questions — Time oe Damage.
    In an action against a railroad company for injuries by being struck by a spike thrown by a passing train while plaintiff was in an adjoining field, whether plaintiff was rendered unable to sleep on his left side by reason of the injury, so as to be entitled to damages on that ground, held a jury question.
    TEd. Note — For other cases, see Damages, Cent. Dig. §§ 54, 64, 68, 132. 144, 145, 205, 220, 533, 534; bee. Dig. § 208]
    4. Appeal and Error (§ 216) — Instructions — Necessity oe Bequest.
    Any error in not limiting the recovery for loss of time to the sum alleged in the petition to have been lost was.one of omission of which defendant cannot complain, where he did not ask a special charge correcting such omission, especially where the evidence did not show that the damage for loss' of time exceeded that amount, it being unlikely that the award for that item was greater than shown by the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 627-641, 660, 662-676; Dec. Dig. § 216.]
    Appeal from District Court, Hill County, ■Horton B. Porter, Judge.
    Action by C. M. Blaekshear against the Trinity & Brazos Valley Kailway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    N. H. Lassiter and Kobt. Harrison, both of l't. Worth, and Morrow & Morrow, of Hills-boro, for appellant. H. B. Porter and Collins, Cummings & Shurtliff, all of Hillsboro, and W. F. Bamsey and Chas. L. Black, both_ of Austin, for appellee.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   BAINEY, C. J.

Appellee sued appellant to recover damages for personal injuries inflicted upon him by a train throwing an iron spike and striking him in the side, breaking his ribs, causing great suffering, etc. A trial resulted in a verdict and judgment in appellee’s favor for $6,000, from which this appeal is prosecuted.

This is the second appeal in this case. On the former appeal, in which a verdict was instructed for the railroad, the judgment was reversed and cause remanded. 131 S. W. 854. The evidence on this appeal is practically the same as on the former appeal, and from which we conclude that, as appellee was plowing in his field adjacent to appellant’s right of way and about 50 feet from the railroad track, a passing freight train picked up a loose iron spike and threw it with great force into appellee’s field, which spike struck him in the side, breaking his ribs, and causing him much suffering, loss of time, etc.

The first assignment of error complains of the court’s refusal to give a peremptory charge to find for appellant. The proposition submitted under this assignment is: “Before a plaintiff can recover of a defendant in a case such as this, in order to show negligence he must prove that the injury was one which under the law the defendant must have anticipated as a result of the alleged acts of negligence.” As a test of liability under the evidence in this case, was it incumbent upon appellee to show that the accident could have been reasonably foreseen or anticipated? We think not. The rule of res ipsa loquitur applies here. As in a case where a passenger is injured from a derailment of a train at a place where the track and train are entirely under the control of the company, the presumption of negligence arises. Railway Co. v. Parks, 97 Tex. 131, 76 S. W. 740; Railway Co. v. Wood, 63 S. W. 164; Street, Per. Injuries, § 196; Railway Co. v. Troutman, 138 S. W. 427.

The appellant introduced no evidence to explain the accident, but there was evidence tending to show the condition of the track, from which the jury might legitimately infer that a loose spike was on the track and was thrown by the train. The appellee, to show liability, was not called upon to prove negligence on the part of the appellant, as the fact of its train throwing the spike or missile on the premises of appellee and injuring him made it liable for all damages' resulting, irrespective of the question of negligence. Appellee was on his own premises, and, while appellant had the right to operate its own trains along its tracks, it was legally bound to so operate them as to not interfere with appellee’s peaceful enjoyment of his premises by throwing thereon missiles which caused injury to him. Hay v. Cohoes Co., 2 N. Y. 159, 51 Am. Dec. 279; St. Peter v. Denison, 58 N. Y. 416, 17 Am. Rep. 258; Steger v. Barrett, 124 S. W. 174; Cooley on Torts (1st Ed.) 332.

The court did not err in refusing to give special charge No. 10, to the effect that the jury could not allow plaintiff damages for being unable to sleep on his left side. Plaintiff alleged and testified as to his being unable to sleep at night on his left side, .by reason of smothering spells when trying to sleep on that side. The doctor testified that Re did not think the smothering spells were produced by the injury. Under the state of the evidence, the charge ought not to 'have been given. The court had already withdrawn from the jury the evidence of smothering spells, and, as the evidence on the question of sleeping at night was conflicting, it was for the jury to determine, and it was proper for counsel to argue it to the jury.

Error is predicated upon the charge to the jury which is as follows: “If you find for plaintiff, you will find for him such an amount as you believe from the evidence will be a fair and just compensation in cash for the injuries suffered by him as a direct and proximate result of defendant’s negligence, if any negligence there was, taking into consideration only the physical and mental pain, if any, sufferéd and to be suffered by him, and the amount of time lost by him, if any, from his usual and customary vocation.” The allegations claimed in the petition for loss of time was $1,000, and appellant contends the court should have limited a recovery for loss of time to the $1,000, and, as the court did not do this, it was calculated to cause the jury to assess a much higher amount than they otherwise would have done. If this was error, it was one of omission, and appellant should have requested a special charge correcting the omission, and, not having done this, it will not be heard to complain, especially when the evidence does not show the damages for loss of time exceeded that amount. It is not probable the jury allowed damages for loss of time in a greater amount than shown by the evidence. City of Dallas v. Jones, 93 Tex. 38, 49 S. W. 577, 53 S. W. 377; Railway Co. v. Motwiller, 101 Tex. 515, 109 S. W. 918.

Appellant has presented other assignments of error on the questions of “anticipation of accident and negligence,” which, in our view of the case, do not affect the liability of the appellant, and what we have heretofore said on these points makes it needless to say more.

Complaint is made that the verdict is excessive. Prom the nature of the injury, as shown by the evidence, we are not prepared to say the jury were wrong. They had the witnesses before them, and they were in a better position to weigh the evidence than we. Their verdict is not so large as to indicate prejudice or passion, and the judgment will not be disturbed.

The judgment is affirmed.  