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Missouri Pacific Railroad Company v. Roberson5/11/2000
t finder. Accordingly, the court of appeals may not pass upon the witnesses' credibility or substitute its judgment for that of the jury, even if the evidence would clearly support a different result. Id. at 406-07 (citations omitted).
It is presumed that the jury considered all of the available evidence. Carr v. Galvan, 650 S.W.2d 864, 869 (Tex. App.--San Antonio 1983, writ ref'd n.r.e.). The mere fact that an award is large is no indication of passion, prejudice or improper motive on the part of the jury, Texas Const. Service Co. of Austin v. Allen, 635 S.W.2d 810, 812 (Tex. App.--Corpus Christi 1982, writ ref'd n.r.e.), and a court is not to substitute its judgment for that of the jury as to the amount of damages to be awarded for personal injuries. Union Bottling Co. v. McDaniel, 546 S.W.2d 876, 880 (Tex. Civ. App.--Houston [1st Dist.] 1977, no writ). Rather, it is only when the award of damages is "flagrantly outrageous, extravagant, and so excessive as to shock the judicial conscience," that it may be disturbed. American Bank v. Waco Airmotive, 818 S.W.2d 163, 175 (Tex. App.--Waco 1991, writ denied).
The jury awarded $45,000 for past lost earnings. Mr. Roberson testified that his wage loss during his period of post-operative recovery in 1992 was approximately $15,000, and that in the ensuing six (6) years he lost overtime at a rate of one shift per week, yielding a cumulative overtime loss in the approximate amount of $60,000, for a total of $75,000 in past lost earnings. It was for the jury to determine Mr. Roberson's award for this element of damage, and it cannot be said that the jury's award of $45,000 exceeded the reasonable range of damages supported by the evidence.
The jury awarded $600,000 for future loss of earning capacity. Mr. Roberson earned approximately $50,000 in 1997, and this income did not include approximately $10,000 in overtime which Mr. Roberson had declined because of his injury . From this evidence, the jury was free to find that Mr. Roberson's earning capacity in 1997 was at least $60,000, not including fringe benefits of employment. The evidence also indicated that Mr. Roberson had received salary increases since his injury, and it was within the province of the jury to include damages to account for Mr. Roberson's likely salary increases in the future. The jury heard evidence that Mr. Roberson would have a total knee replacement at some point in the future, that such surgery might even become necessary within the next twelve months, and that, following this surgery, Mr. Roberson would be unable to perform the duties of his former occupation. Thus, the jury was entitled to conclude that Mr. Roberson's earning capacity would cease almost immediately, at age 55. And, contrary to the railroad's suggestion, the jury was not required to calculate Mr. Roberson future loss of earning capacity only to age 65. Although Mr. Roberson testified that barring physical disability he thought he probably would retire at that age, the jury was free to conclude that Mr. Roberson would have continued working for the railroad beyond that age, if not for his injury. A.T. & S.F. Ry. Co. v. O'Merry, 727 S.W.2d 596, 600 (Tex. App.--Houston [1st Dist.] 1987, no writ)(It is assumed that but for injuries suffered, injured party would have continued to work and receive payment until retirement, disability or death); Roberts v. Tatum, 575 S.W.2d 138, 143 (Tex. Civ. App.--Corpus Christi 1978, writ ref'd n.r.e.)(noting that jury was empowered to find that the plaintiff would continue working beyond age 65 despite his testimony suggesting otherwise).
The jury awarded $85,000 for past pain and mental anguish, and $250,000 for future pain and mental anguish. It is peculi
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