Cunningham v. Neal

• Decision Date: 24 March 1908
• Citation: 109 S.W. 455
• Parties: CUNNINGHAM et al. v. NEAL.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

109 S.W. 455

CUNNINGHAM et al. v. NEAL.^*

Court of Civil Appeals of Texas.

March 24, 1908.

Rehearing Denied April 9, 1908.

Appeal from District Court, Ft. Bend County; Wells Thompson, Judge.

Action by Henry P. Neal against Ed. H. Cunningham and others. From a judgment for plaintiff against defendants W. C. Zelle, as receiver of Ed. H. Cunningham & Co., a private corporation, and the Cunningham Sugar Company, alone, they appeal. Affirmed.

See 107 S. W. 539.

C. R. Wharton, Lane, Jackson, Kelley & Wolters, and Baker, Botts, Parker & Garwood, for appellants. Lovejoy & Parker, W. G. Love, and R. J. Channell, for appellee.

McMEANS, J.

Neal sued the Sugarland Railway Company, Ed. H. Cunningham & Co., a private corporation, engaged in the manufacture of sugar, and Ed. C. Lassiter, its receiver, and W. C. Zelle, receiver, who succeeded Lassiter during the pendency of the litigation, and the Cunningham Sugar Company, which had taken over the property of Ed. H. Cunningham & Co. from the hands of the receiver during the pendency of the suit, for damages for personal injuries sustained by him. He alleged that while he was in the employment of defendants in the capacity of foreman of the switching crew in defendants' railroad yards at Sugarland, the defendants, their servants and agents, negligently and carelessly caused and permitted a string of cars to be backed over and against him, catching and mashing him between a car and a shed post, without any warning or notice to him, and without warning or notice from him; that at the time he was in a place of danger, and that his co-employés aiding and assisting him knew that said cars should not be moved or disturbed except upon due and proper signal from plaintiff; that it was their duty to keep a proper lookout for him, and not to move the cars in any event without a signal from him or without a signal to him, but that negligently disregarding their duty in that behalf they caused the cars to be moved against him, without signal of any kind. He further alleged that it was the duty of the engineer and fireman to give signals before moving the engine against the cars, and this duty they negligently failed to perform. Defendants answered by general demurrer, special exceptions, and pleaded contributory negligence, in that the position of the shed post against which plaintiff was caught by the moving car was obvious, and that he failed to properly observe his surroundings before going between the post and the car; and further pleaded that if plaintiff was injured as alleged in his petition the co-employés were his fellow servants for whose negligent acts defendants were not liable. Plaintiff recovered judgment on the verdict of a jury against W. C. Zelle, receiver, and the Cunningham Sugar Company for $4,300. Under instructions from the court the jury returned a verdict in favor of Lassiter, receiver, Ed. H. Cunningham & Co., and the Sugarland Railway Company. Appellants' motion for new trial having been overruled, they have brought this case before us on appeal.

Appellants' first and second assignments complain of the refusal of the court to sustain their special exception to the petition, in that the allegations of injuries received by appellee were too vague, indefinite, and uncertain, and did not recite with sufficient particularity the nature and extent of appellee's injuries, and in permitting the witness Dr. Boyd to give testimony with reference to such injuries because the pleadings were too vague and indefinite in their character to admit of the testimony.

The allegations of the petition as to the nature and extent of the injuries, are as follows: "That he received then and there serious and permanent injuries in the following respects, to wit: (a) In that the inner or outer table, or both, of his skull was fractured. That as a result thereof it is in a condition where foreign substance may obtain a footing and progressive growth, such as adhesions, exudates, calcus, cysts or tumors, extravasation of blood or hemorrhage. That his skull was fractured in the temporal, parietal, and occipital regions, and his frontal bone seriously injured. (b) That his brain was injured. (c) That his eye and eyesight are almost destroyed, making it impossible for him to read; that he experienced great pain and difficulty in attempting to see; that his hearing in both ears was affected and injured. (d) That his arms, shoulders, sides, hips, legs, and feet were bruised and injured, and the left clavicle fractured. (e) That the cervical, dorsal, and lumbar vertebræ, and the spinous and transverse processes thereof, as well as the nerves, muscles, and ligaments surrounding and connected with his vertebræ were injured, as a result of which he is suffering from neurasthenia and spinal concussion. (f) That his heart, lungs, kidneys, liver, and bladder, by reason of said injuries, and as a result thereof, have become involved and affected; that his pulse and temperature are abnormal and erratic. (g) That he has suffered and continues to suffer great physical pain and mental anguish. (h) That he has lost appetite; he is unable to sleep, and is losing weight constantly. (i) That the muscles of his body are atrophying."

The witness Dr. Boyd testified that he examined Neal about six weeks after he was injured, and, from the evidence, the witness could testify that one of his collar bones had been fractured; that four ribs had been injured; that the left shoulder had been injured, either sprained or dislocated; that there were "extensive scars on his head, one about 9 inches long, beginning over the side of the left eye and running back over his forehead on back of his head; another scar on the right side about 2½ or 3 inches long, running back toward the ear, back of the eye; he had, also, another scar, possibly 1 inch long, on the other side back of his ear"; that his hearing was defective—probably one-half or one-third what it should be; that he suffered from squint of his eyes—crossed eyes; that he was nervous, had "increased ceroflexis"; that his examinations made at different periods showed this latter disease to be increasing in intensity all the time; that, from the indications at the time his examinations were made, he was unable to learn whether or not there had been a fracture of the skull or an injury to the membranes of the brain, but that Neal's general condition since his first examination has grown worse, which would indicate that there has been severe injury to the brain or the brain membranes; that the heart's action has increased in rapidity, has become more or less irregular, and the area over which it can be felt largely increased in size, indicating that the heart has become enlarged; pulse rate had increased from 96 at the first examination to 144, commonly running about 132; that 70 to 90 is normal; that neurasthenia is nervous exhaustion, and lack of nerve control; that the first time he weighed Neal, which was about a year before the trial, Neal weighed 167 pounds, 10 days before the trial he weighed 156. The assignments are without merit, and are overruled.

Appellants' third assignment is based on the refusal of the court to sustain their objection to the following question propounded to plaintiff while testifying in his own behalf: "State whether or not you gave Mr Dargan or the engineer any orders or instructions to move these cars, to which you instructed them to couple, across the dirt road on to the two cars situated west of the dirt road?" To which the witness answered: "I did not." Appellants contend that the question was leading and that plaintiff was told by the form and language of the question exactly what his counsel desired him to answer. We do not think the question obnoxious to the objection made. Under the rule generally laid down by text-writers the question would be leading, in that it embodies a material fact and may be answered by a simple affirmative or negative, but as said by Justice Pleasants in Railway v. Collins, 33 Tex. Civ. App. 58, 75 S. W. 816, "* * * our Supreme Court has modified this rule, and holds that a question which may be answered by a simple `Yes' or `No' is not leading unless the form of the question suggests the answer." It would be impossible to tell from the form in which the question was put what answer was desired, and therefore the question cannot be considered leading. Lott v. King, 79 Tex. 292, 15 S. W. 231; Railway v. Dalwigh, 92 Tex. 655, 51 S. W. 500. The assignment is overruled.

The witness Caroline Neal testified as to the condition of the health of appellee as follows: "He [appellee] has been very nervous; he has attacks of nervousness. Often mother and I have been up with him two or three nights at a time. He is troubled with his heart. He imagines that his heart don't beat, and sometimes it seems that it has almost stopped; he did not sleep; he just shakes all over and just has terrible nervous attacks. He has these attacks about once a month, and it seems like they last three or four days, and then he gets better, and seems to be all right until another one comes on." This testimony was objected to, and it is urged that the witness not being an expert it was error to allow her to give the testimony, which was nothing more than an opinion as to the state and condition of plaintiff's health. The testimony complained of was a mere statement of facts gathered from observations of outward manifestations open to all who came in contact with appellee subsequent to his injury, and was competent as showing his physical condition. But, conceding that the witness was stating her opinion, the rule laid down by text-writers, and which seems to have been followed in this state, is that a nonexpert witness may give his opinion on questions of apparent conditions of the body or mind, sickness, health, etc. "Such testimony is received in the particular cases or instances mentioned because a mere description without...