Campbell v. Alston

• Decision Date: 18 May 1893
• Citation: 23 S.W. 33
• Parties: CAMPBELL v. ALSTON.
• Court: Texas Court of Appeals

23 S.W. 33

CAMPBELL v. ALSTON.

Court of Civil Appeals of Texas.

May 18, 1893.

Appeal from Smith county court; B. B. Beaird, Judge.

Action for personal injuries by G. W. Alston against T. M. Campbell, receiver of the International & Great Northern Railroad. Plaintiff had judgment, and defendant appeals. Reversed.

G. H. Gould, for appellant. Ben B. Cain, for appellee.

WILLIAMS, J.

Several errors occurred in the trial below, on account of which the judgment must be reversed.

1. The second special exception to the petition should have been sustained. It was leveled at the allegation that while plaintiff, in alighting from the train, was trying to keep himself from falling, he was laughed at by other passengers. No circumstances are alleged which would make defendant responsible for such conduct of others. If plaintiff was mortified by it, this injury to his feelings was not shown to have been a proximate consequence of any act or omission of defendant. The court not only overruled the exception, but evidence was introduced in support of the allegation, and the error is therefore material.

2. There was no evidence of the value of any time which plaintiff may have lost, nor of the amount of any expenses he may have incurred, as the result of his alleged injuries. It was therefore error for the court to submit to the jury for their finding any such elements of damages. It has been repeatedly held that, before there can be a recovery for such items, the evidence must show the amount to which plaintiff is entitled, and that, where the evidence fails to do this, the charge must not authorize the jury to find damages upon such basis.

We will proceed to notice the other points raised by the briefs, and pass upon such as may occur at another trial. The court should have sustained appellant's motion to suppress some of the interrogatories addressed to appellee, as leading, viz.: "Was the place you alighted from a station? Did it seem to be a safe place for you to get off, or did you have reason to believe it was dangerous? Was the train moving?" The entire fourth and fifth interrogatories; the following part of the sixth, "Did the trainmen, or any of them, assist you to get off the train?" and the last subdivision of the seventh. The eighth is not objectionable in form, but the evidence sought to be elicited would be irrelevant under our decision of the first point. The effect of portions of the charge was to inform the jury that the law imposed upon defe...