Missouri, K. & T. Ry. Co. of Texas v. Dalton

• Decision Date: 15 May 1909
• Citation: 120 S.W. 240
• Court: Texas Court of Appeals
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. DALTON.

120 S.W. 240

MISSOURI, K. & T. RY. CO. OF TEXAS v. DALTON.

Court of Civil Appeals of Texas.

May 15, 1909.

Rehearing Denied June 5, 1909.

Appeal from District Court, Hunt County; T. D. Montrose, Judge.

Action by S. L. Dalton against the Missouri, Kansas & Texas Railway Company of Texas for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed, on condition of remittitur.

Coke, Miller & Coke and Templeton, Craddock, Crosby & Dinsmore, for appellant. Wm. Pierson and T. D. Starnes, for appellee.

BOOKHOUT, J.

This suit was brought by the appellee against the appellant to recover damages for personal injuries alleged to have been sustained by the appellee on the 27th day of October, 1907, as a passenger on one of appellant's trains. After alleging that appellee was a passenger from Greenville, in Hunt county, to Dallas, it was alleged: That at a point in Dallas county said train, through the carelessness and negligence of the defendant and its agents, servants, and employés, who operate and control the movement of its trains, engine, and cars, with terrific force ran into and collided with an engine or tender, or with the tender of an engine, or with a train of cars, with such force and violence as to cause the passenger coach of the train on which plaintiff was being transported to be jammed together, broken, and shattered, and especially was the car or coach in which plaintiff was riding struck with such force and violence as to break and shatter and wreck said car. "That the plaintiff was caught in said wreck or collision and was severely shocked, wounded, and bruised. That his left foot was crushed and mangled. That the tendons, ligaments, and muscles of said foot were injured and torn, and the bones broken. That, as a result of the injury to plaintiff's foot, he is now, and will likely be, a cripple. That said foot, tendons, ligaments, muscles, and bones were painfully and permanently injured." It is further alleged that: "His side was mashed, crushed, bruised, and several of his ribs were fractured or broken. He was injured in and about the chest and lungs. That he received a terrific blow in and about the region of his lungs. That as a result of said trauma or injury the plaintiff now is suffering with tuberculosis, or consumption. That plaintiff was injured internally, and that by reason of said injury all of his vital organs have been impaired and permanently injured. That he received a terrific blow on the back of his head laying open the scalp to the bone. That as a result of the lick or wound on the head plaintiff's brain has been greatly and permanently injured. That his memory has been greatly impaired, and his mind grievously affected. That as a result of said injury so received the plaintiff is unable to think consecutively or to reason or study, and that the faculties of the mind have been injured and permanently impaired. That he suffered with terrific headaches and is unable to rest or to sleep. That his entire nervous system has been greatly shocked and permanently impaired. That the nerves which supply all the functions of the body have been impaired to such an extent that they no longer perform their functions. That as a result of said injury received he is suffering, and will suffer the rest of his life, with neurasthenia. That plaintiff's back, spine, spinal cord, and spinal column were injured, and as a result of the shock and injury received to the back, spine, spinal cord, and spinal column plaintiff is suffering with paralysis, and has been unable to stand upon his feet or move about. Plaintiff's back was severely wrenched, and the tendons, muscles, and ligaments and nerves thereof were strained, torn, wrenched, and bruised and severely injured. That plaintiff as a result of said injuries was confined to his bed for some months, being unable to lift his head and shoulders. That his spine, spinal cord, spinal column, and back are permanently injured, and that as a result of said injuries plaintiff is suffering with spinal debility and nervous prostration. That he received an injury to his kidneys and bladder and is unable to control his urine, and that his right leg and foot are partially paralyzed, and at times he is wholly unable to stand on same or control same in any degree, and that he has by reason of his injury lost the use of his right arm. That he has tingling sensations in his right arm and leg and is wholly unable to control the same. That all of the injuries hereinafter set forth are permanent in their nature, and as a result of same the plaintiff has, and will in the future, suffer great physical pain and mental anguish." Appellant answered by special exceptions and by general denial. A trial resulted in a verdict and judgment for plaintiff. Upon the overruling of defendant's motion for new trial, an appeal was perfected to this court.

Conclusions of Fact.

On October 27, 1907, while a passenger on appellant's south-bound train, appellee was seriously and permanently injured as the result of a collision of said south-bound train with one of appellant's engines which was being propelled north on the same track. The collision resulted from the negligence of the servants and agents of appellant controlling the operation and movements of its trains, cars, and engines. By his injuries appellee sustained damage in the sum of $27,500.

Conclusions of Law.

The first, second, third, and fourth assignments of error complain of the action of the court in overruling defendant's special exceptions to the allegations in the petition as to the nature, character, and extent of the injuries alleged to have been sustained by plaintiff. The injuries alleged are set out above. The nature and extent of the injuries alleged are sufficiently specific to enable the defendant to prepare its defense, and there was no error in overruling the defendant's special exceptions to the same. I. & G. N. Ry. Co. v. Gready, 36 Tex. Civ. App. 536, 82 S. W. 1061; S. A. St. Ry. Co. v. Muth, 7 Tex. Civ. App. 443, 27 S. W. 752; Oliver v. Chapman, 15 Tex. 403.

The fifth assignment of error assails the third paragraph of the court's main charge to the jury, as follows: "Therefore, if you believe from the evidence that the collision of defendant's passenger train with its engine, at the time and place mentioned in plaintiff's petition, was caused by the failure of defendant to exercise that high degree of foresight as to possible dangers to its passengers, and that high degree of prudence in guarding against them, if you find there was such failure, as would be used by very cautious, prudent, and competent persons under similar circumstances, and that said failure, if any, was the proximate cause of plaintiff's injuries, if any, then you will find for the plaintiff; unless you so find, you will find for the defendant." It is contended that the basis of the action and the cause of the accident and injuries was the negligence of the employés controlling the movement of and operating the passenger train, and that the undisputed evidence shows that the cause of the accident was the negligence of the employés operating the north-bound engine, and that those controlling the movement of and operating the passenger train were guilty of negligence, and that the charge is therefore erroneous, misleading, confusing, and without basis in the pleadings. This contention is based on an erroneous view of the petition in using the words "train" and "car" for "trains" and "cars." The specific allegation in the petition to which the contention refers is as follows: "That after the train on which appellee was being transported had reached a point beyond the city of Garland, in Dallas county, Tex., said train, through the carelessness and negligence of the defendant and its agents, servants, and employés, who operate and control the movements of its trains, engine, and cars, with terrific force ran into and collided with an engine or tender, or with the tender of an engine, or with a train of cars, or some other object on its said track, with such force and violence as to cause the passenger coach of the train on which plaintiff was being transported to be jammed together, broken, and shattered, and especially was the car or coach in which plaintiff was riding struck with such great force and violence as to break and shatter and wreck said car. That plaintiff was caught in said wreck or collision and was severely shocked, wounded, and bruised." The charge was correct as applied to the pleading.

Complaint is made of the fourth paragraph of the court's charge, which defines the measure of damage, as follows: "If you find for plaintiff, you will allow him such sum as you find and believe from the evidence will, as a present cash payment, fairly compensate him for his diminished capacity, if any, you find he has sustained on account of his injuries, to labor and earn money; also, for the mental and physical pain, if any, he has suffered on account of his injuries, if any, and for the physical and mental pain, if any, you find and believe from the evidence it is reasonably probable he will suffer in the future on account of his injuries, if any, and all reasonable and necessary physicians' bills, if any." It is insisted that this charge is erroneous because there was no evidence as to the medical bills of some of the physicians who treated the plaintiff for his alleged injuries, or that the charges made therefor were reasonable. Again, it is insisted that the charge authorized a recovery by the plaintiff for all physicians' bills incurred by the plaintiff on account of the injuries, there being no evidence as to some of the bills that they were reasonable, and in that, as to such bills as were not shown by the evidence to be reasonable, the jury were left to their own judgment, without legal guide, to determine the reasonableness thereof. This assignment is not sustained. There was evidence tending to show...