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Missouri Pacific Railroad Company v. Roberson5/11/2000
t would support a person's weight. Therefore, the railroad's basic contention that Mr. Roberson simply failed to "watch where he was walking" is really of no consequence. There was no evidence that Mr. Roberson was not conscious of the "underfoot conditions" at the time of the injury. Indeed, there was abundant evidence that carmen were aware, and appropriately respectful, of the unstable nature apparently inherent in the piling of large ballast located along the classification tracks.
As we appreciate the gist of the railroad's position as argued in its brief the evidence of Mr. Roberson's contributory negligence came from the fact that he was a carman with 24 years experience walking the ballast along the classification tracks so because he sustained the knee injury by slipping on large ballast he must not have been walking cautiously. The railroad cites us to Martinez v. Union Pacific R. Co., 82 F.3d 223, 228-29 (8th Cir. 1996), for the proposition that "the law requires [plaintiff] to do two things at once," i.e., "to be alert and attentive when performing his duties and to exercise reasonable care for his own safety." However, as noted in Martinez, Martinez admitted that he fell when he "misjudged" his position on the ramp. Because, as we have already noted, visual observance of the condition of large ballast is virtually useless as a gauge of its stability, Mr. Roberson's visual awareness of the ballast condition is a non-issue regarding his contributory negligence. We have no evidence even inferring that he was walking on the large ballast in a manner inconsistent with the caution necessary to do his job safely and without risk of injury. The railroad makes the statements in its brief that the record contains evidence that Mr. Roberson "could have walked more cautiously," and "failed to take ordinary precautions by walking more slowly." We are not provided, however, with any citation to the record in order to locate this "evidence." If these observations are to be inferred, there must be some probative evidence upon which to base them. We find none. The trial court, therefore, did not err in refusing to submit the railroad's request for an instruction on contributory negligence to the jury. Point of error one is overruled.
In its final challenge to the judgment, the railroad contends that the jury's damage award was not supported by the evidence. We disagree and overrule point of error three.
The amount of damages awarded is uniquely within the jury's discretion. Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 581 (Tex. App.--Houston [1st Dist.] 1992, no writ). Personal injury damages are unliquidated and are not capable of certain measurement; the jury has broad discretion in assessing the amount of damages in a personal injury case. See Transit Management Co. of Laredo v. Sanchez, 886 S.W.2d 823, 826 (Tex. App.--San Antonio 1994, no writ). A jury may exercise considerable discretion and generosity in awarding damages for personal injuries. Dougherty v. Gifford, 826 S.W.2d 668, 682 (Tex. App.--Texarkana 1992, no writ).
The standard of review for an excessive damages complaint in FELA cases is factual sufficiency of the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998). In Ellis, the Supreme Court of Texas described the factual sufficiency analysis as follows:
When considering a factual sufficiency challenge to a jury's verdict, courts of appeals must consider and weigh all of the evidence, not just that evidence which supports the verdict. A court of appeals can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. The court of appeals is not a fac
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