Canyon Power Co. v. Gober
| Decision Date | 21 February 1917 |
| Docket Number | (No. 1117.) |
| Parties | CANYON POWER CO. v. GOBER. |
| Court | Texas Court of Appeals |
Appeal from District Court, Randall County; Hugh L. Umphres, Judge.
Action by U. S. Gober against the Canyon Power Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Ben H. Stone, of Amarillo, for appellant. Turner & Rollins, of Amarillo, and Flesher & Flesher, of Canyon, for appellee.
Suit was brought by U. S. Gober, in the district court of Randall county, against appellant, Canyon Power Company, to recover damages for injuries sustained by plaintiff's wife, caused by her tripping and falling over a guy wire, alleged to have been negligently placed and maintained by the appellant, in the parking between the street and sidewalk, in front of the residence of one E. Burrow, in the town of Canyon, Tex. It was shown upon the trial that the residence of E. Burrow, in Canyon, Tex., in front of which the accident happened, was situated on the southeast corner of the block, fronting east; that a light pole was erected by the defendant near the intersection of the streets at the southeast corner of this block, and from the top of this pole a guy wire was extended northward and anchored in the ground, in the parking between the street and sidewalk, at a point a few feet to the north of a point directly in front of the center of the residence. The entrance to the house was from the east, so that this guy wire passed over the entrance going direct from the street across the parking. At a point directly in front of the steps the guy wire was somewhat higher than the head, but came to the ground some feet north of such place, and on account of the location of a tree in the parking a very small space was left within which one might pass under the wire without touching it, if entrance were made from the street directly in front of the house. The guy wire was made up of a braid of small wires, being about one-quarter inch in diameter, and had no covering of any kind over it. The yard of the said Burrow was unfenced. Just after dark, on the evening of the accident, Mrs. Gober was in an automobile, driven by Mr. Burrow, who stopped the car near the parking in front of his house, and just about opposite where the guy wire was anchored. Mrs. Gober alighted for the purpose of visiting with the Burrows, and in going across the parking toward the house tripped over the wire and fell, dislocating and breaking some of the bones in her hand and wrist.
The plaintiff alleged that his wife, as the result of tripping over said wire, sustained the injuries above described, from which she suffered great pain; that said injury is permanent, and that his said wife, on account thereof, had been unable to perform her household duties as before; and that such condition will continue in the future. In connection with these allegations plaintiff alleged that:
"Plaintiff and his wife have incurred indebtedness for medical treatment and medicine made necessary by said injury to the extent of $100, all of which he has paid, or is obligated to pay, and will have to pay, for treatment for his said wife, made necessary as the direct and proximate result of the said negligence of the defendant."
No specific allegation of the amount of damage is made in the body of the petition, except that just quoted; but the prayer of the petition immediately follows the description of the injuries sustained, statement of consequent suffering, and impairment of health and ability to work, and said prayer contains this statement:
"That on final trial plaintiff have judgment for the sum of $2,500, the amount to which he is justly entitled by reason of the premises," etc.
The appellant urges that, as the only specific statement of the amount of damages as contained in the body of the petition fixes such amount at $100, and that the allegations of damage cannot be aided by the prayer, hence the petition shows on its face that the amount in controversy is only $100 and the district court was without jurisdiction. The case of Pecos & Northern Texas Railway Co. v. Canyon Coal Co., 102 Tex. 478, 119 S. W. 294, is relied on to support this contention. In that case there were specific allegations in the body of the petition of stated items of damages, and the court held that the sum of these might not be reduced by the general prayer to bring the amount in controversy within the limited jurisdiction of the court in which the suit was filed. We do not think the decision applicable. In this case it is evident that the $100...
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