Yoakum v. Kroeger

• Decision Date: 10 October 1894
• Citation: 27 S.W. 953
• Parties: YOAKUM et al. v. KROEGER et ux.
• Court: Texas Court of Appeals

27 S.W. 953

YOAKUM et al. v. KROEGER et ux.

Court of Civil Appeals of Texas.

October 10, 1894.

Appeal from district court, Wilson county; Thomas H. Spooner, Judge.

Action by O. G. Kroeger and wife against B. F. Yoakum, receiver, and others, for personal injuries. There was judgment for plaintiffs, from which defendants appeal. Affirmed.

R. W. Stayton, for appellants. A. J. Williams and Blanton & Blanton, for appellees.

FLY, J.

Appellees, being husband and wife, sued B. F. Yoakum and J. S. McNamara, receivers, and the San Antonio & Aransas Pass Railway Company, for damages accruing by reason of appellants' running their cars off a switch into the yard of appellees, tearing down their fence, and so frightening Mrs. Kroeger as to impair her health, and cause her great mental and bodily pain, and expenditure of money for medicine and medical attention. There was a verdict and judgment for appellees for $435.73. There being no proof of expenditure for medicine or medical attention, those items were withdrawn from consideration of the jury by the charge of the court.

In the first assignment of error, complaint is made that the court erred in overruling certain special exceptions to the petition. This assignment is not sustained by the record, as it does not show that any action whatever was taken in the trial court in regard to the exceptions; and, according to the practice in this and the supreme court, it will be presumed that the exceptions were waived and not insisted upon in the lower court. The evidence in this case shows that during the summer and fall of 1890, at four different times, appellants, who had a spur or switch terminating some 60 feet from appellees' house, had run cars along the switch with such force and violence that they had gone through the fence, and to within 10 feet of the house. Mrs. Kroeger swears that she was for months in mortal dread, for fear the cars would run into the house, and that coming suddenly and unexpectedly crashing through the fence, close to her house and children, that she had been prostrated with fright, and her health had been greatly impaired. When the car first came into the yard, appellees had notified appellants' agent of it, and had requested that steps be taken to prevent a recurrence of the event; but nothing was done for months, and not until the cars had been three other times run off the track into the yard of appellees. Mrs. Kroeger says: "The cars entered without a moment's warning, and with a terrible crash, and ran to within about ten feet of our kitchen. The shock and fright made me terribly sick. * * * I was frightened almost out of my senses. * * * I know it made me terribly sick, and I was constantly in dread, and extremely nervous." For months she was in this condition of dread and suspense. What was the direct, proximate cause of this condition of mind and body? Undoubtedly, it was the entrance of the cars into the yard, and in close proximity to the dwelling. We are of the opinion that appellant is liable for injuries to the mind and body ensuing upon "nervous shock" superinduced and brought about by their negligence. It has been held in a recent New York case that a street-car company was liable for damages resulting to a lady from fright produced by negligence. She was in a delicate condition, and was about to board a car. A car on another track was being rapidly driven down a hill to where the lady was standing, until it almost ran over her. She was not, however, actually touched, but was rendered unconscious by fright and excitement, and a miscarriage followed the shock. It was held that the negligence of the street-car company was the proximate cause of the injury. Mitchell v. Railway Co. (Cir. Ct.) 25 N. Y. Supp. 744. That decision is...