Chicago, R. I. & G. Ry. Co. v. Swan

• Decision Date: 16 June 1910
• Citation: 130 S.W. 855
• Parties: CHICAGO, R. I. & G. RY. CO. v. SWAN.
• Court: Texas Court of Appeals

130 S.W. 855

CHICAGO, R. I. & G. RY. CO. v. SWAN.

Court of Civil Appeals of Texas.

June 16, 1910.

Rehearing Dismissed October 6, 1910.

Appeal from District Court, Tarrant County; W. T. Simmons, Judge.

Action by Grace Swan against the Chicago, Rock Island & Gulf Railway Company. From a judgment for plaintiff, defendant appeals. Conditionally affirmed.

N. H. Lassiter and Robert Harrison, for appellant. Capps, Cantey, Hanger & Short, for appellee.

LEVY, J.

Appellee was a passenger on appellant's regular passenger train, and as the train was backing out of the Ft. Worth station, in the yards, another train collided with it, injuring her. She sued for damages, alleging serious and permanent personal injuries consisting of an injury to her foot, internal injuries, and a nervous shock. In accordance with the verdict of a jury, judgment was entered for appellee. There is no complaint here of the liability of appellant for negligence, but of the amount of her recovery.

By the first assignment error is predicated upon the court's charge to the jury in authorizing a recovery for future mental suffering, and for such medical bills as would be necessary to expend in future on account of the injuries. On the first objection, the precise contention made is that the evidence is insufficient to justify the submission of the issue of future mental suffering. The pleadings warranted the submission of the issue, and no point is made in this respect. The court instructed the jury, as to the question: "And if you find from the evidence that the injuries to Miss Grace Swan, if any, are permanent, or if she has not yet recovered therefrom, and that she will hereafter suffer physical and mental pain, or either, on account thereof, then you will take these facts into consideration in arriving at your verdict." We are not prepared to say that there was no evidence which authorized this instruction. There was evidence offered by appellee that her foot was seriously injured and permanently affected, and that she was suffering pain from the injury at the time of the trial. If, therefore, there was evidence of serious physical injury inflicted to the foot, and physical pain is undergone up to and has not ceased at the time of the trial of the case, and the injuries are permanent, and all of which are questions of fact, then, we think, there is sufficient evidence present to authorize the jury to infer mental suffering to accompany the continuing physical pain. Brown v. Sullivan, 71 Tex. 470, 10 S. W. 288; Railway Co. v. Garrett, 44 Tex. Civ. App. 406, 98 S. W. 932. The character of appellee's injury is quite different from the ailments in Railway Co. v. Simpson, 81 S. W. 353. In Railway Co. v. Sain (Ark.) 119 S. W. 661, 22 L. R. A. (N. S.) 910, the injuries were apparently healed at the time of the trial, and in the instant case it reasonably appears that there is a permanent injury. The second objection to the charge must, we think, be sustained. There is evidence of the reasonable cost of a future surgical operation, and we must assume that the jury...