Dallas Consol. Electric St. Ry. Co. v. English

• Decision Date: 24 March 1906
• Citation: 93 S.W. 1096
• Court: Texas Court of Appeals
• Parties: DALLAS CONSOL. ELECTRIC ST. RY. CO. v. ENGLISH.

93 S.W. 1096

DALLAS CONSOL. ELECTRIC ST. RY. CO. v. ENGLISH.

Court of Civil Appeals of Texas.

March 24, 1906.

Appeal from District Court, Dallas County; Richard Morgan, Judge.

Action by Howell English against the Dallas Consolidated Electric Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Finley, Knight & Harris, for appellant. Marcus M. Parks, for appellee.

TALBOT, J.

This suit was instituted in the Forty-Fourth judicial district court of Dallas county by appellee for damages on account of personal injuries alleged to have been sustained by him on August 10, 1903, in a collision with one of the defendant's cars at a point where Main and Hawkins streets of said city intersect. In his amended petition, upon which the cause was tried, appellee alleged, among other things, in substance: That on August 10, 1903, while plaintiff was driving in a vehicle drawn by a horse in the city of Dallas, and crossing Main street at its intersection with Hawkins street, defendant negligently ran and propelled one of its cars into and against the horse driven by plaintiff, smashing and injuring the said buggy and horse, and the harness on said horse, and seriously injuring the plaintiff. Appellant pleaded general and special exceptions, a general denial, and, specially, that plaintiff was guilty of contributory negligence in the following particulars, viz.: That as he approached the place of the accident he negligently failed to look and listen for the approach of defendant's car; that when he discovered said car he failed to exercise ordinary care to avoid a collision therewith, and failed to check the speed of his horse in sufficient time to avoid the accident; that as the plaintiff approached the scene of said accident he was driving his horse through the streets of the city of Dallas at a faster gait than seven miles per hour, in violation of an ordinance of the city of Dallas, which ordinance was in full force and effect at the time of the act aforesaid; that plaintiff at the time of the accident complained of herein was negligently driving on the streets of the city of Dallas in an intoxicated or semi-intoxicated condition, and that by reason of such fact he was not exercising that care for his own safety which a person of ordinary care and prudence would have exercised under the same or similar circumstances. A jury trial resulted in a verdict and judgment in favor of appellee in the sum of $2,275, from which appellant has appealed.

Appellant's first assignment of error complains of the action of the court in refusing to permit the witness Robertson, who, it seems, had seen the accident, to testify by deposition that the motorman at the time of the accident made a good stop; that in the judgment of the witness it was as quick a stop as could have been made at that time and place. The testimony was objected to, on the ground that it called for the conclusion of the witness, and was excluded by the court. The witness by his own testimony showed some familiarity with the stopping of cars and the conditions and circumstances that influenced the stopping of the same, and while similar testimony as that excluded has sometimes been allowed and sustained by the appellate courts, yet we are not prepared to say that the trial court in this instance has committed reversible error. Whether the witness has qualified himself to testify as an expert upon any subject undergoing investigation, or has "sufficiently observed and considered the particular matter under consideration to qualify him to form and express an opinion thereon," are questions for the determination of the trial court, and its action will not ordinarily be reviewed, unless an abuse of its discretion is made to appear. No such abuse of the court's discretion is shown in this instance.

Complaint is made of the following paragraph of the court's charge on the measure of damages: "If your verdict should be for the plaintiff, then the amount of such verdict should be such sum of money, if any, as in your best judgment, in the light of the testimony before you, will be a reasonable pecuniary compensation to plaintiff for all such physical pain, if any, and mental suffering, if any, and impairment, if any, of his ability to earn money, as the plaintiff may have sustained as the direct result of said accident, and also for all such injury, if any, to the plaintiff's horse or buggy or harness as may have been the direct result of the said accident."

It is contended that the evidence showed injury to appellee's neck, not alleged in his petition, from which he has suffered, and that the above charge was erroneous in that it did not limit appellee's recovery to the injuries and suffering claimed in said petition. We think the contention must be sustained. There was no allegation in appellee's petition that he had received any injury to his neck, or that he suffered any pain in his neck; nor do we think the injuries alleged would necessarily result in injury to the neck, or include such an injury. Appellee testified that when the collision occurred he was thrown out of the buggy, and fell on his neck, back, and shoulder; that his head, neck, and left arm seemed to be the parts upon which he fell; that it stunned him and knocked him "kind of silly" when he first hit the ground. W. D. Banks, who was in the buggy with appellee at the time of the accident, testified: "I never heard of his [appellee] being unwell or making any complaint before the accident, and after the accident every time I saw him he appeared to be puny, and told me then he was suffering with pain in his shoulder and neck. I saw him frequently, and he would tell me his injuries still hurt him. He complained to me frequently about suffering with his shoulder and neck." It will be observed that the charge objected to instructed the jury that,...