Dallas Ry. Co. v. Hallum

• Decision Date: 03 July 1925
• Docket Number: (No. 9409.)
• Citation: 276 S.W. 460
• Parties: DALLAS RY. CO. v. HALLUM et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

276 S.W. 460

DALLAS RY. CO. v. HALLUM et al.^*

(No. 9409.)

Court of Civil Appeals of Texas. Dallas.

July 3, 1925.

Rehearing Denied October 24, 1925.

Error from District Court, Dallas County; T. A. Work, Judge.

Action by Mrs. Frances Hallum and another against the Dallas Railway Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

Beall, Worsham, Rollins, Burford & Ryburn, of Dallas, for plaintiff in error.

Carden, Starling, Carden & Hemphill, and Wallace & Taylor, all of Dallas, for defendants in error.

LOONEY, J.

The Dallas Railway Company appeals by writ of error from a judgment for $12,000 rendered against it in favor of Mrs. Frances Hallum for personal injuries received by her while alighting from one of the company's street cars in the city of Dallas.

The case was submitted to a jury on special issue, and, on their findings, the judgment was rendered. The court's conclusions of fact and law will be stated during the progress of the discussion.

1. Plaintiff in error, in its eighth proposition, contends that the verdict of the jury on the issue of negligence is so against the overwhelming preponderance and weight of the evidence as to indicate improper motives on the part of the jury.

Plaintiff stated her cause of action substantially as follows: That she was a passenger, riding in one of the company's cars, and, while it was at a standstill at a street intersection, she undertook to alight through the exit door at the front end, and before she completed her exit, and before she had a reasonable length of time to do so, the company, and its agent and servant, the motorman of said car, caused the same to start, and that by reason thereof plaintiff was thrown with great violence from the car to the pavement of the street, and injured.

She further alleged that the defendant and its agents and servants were guilty of negligence in the following respects, to wit: (a) That they negligently and carelessly started the car in motion while she was in the act of alighting from same; (b) that they negligently and carelessly started the car with a lurch and a jerk; (c) that they negligently and carelessly failed to allow plaintiff a reasonably sufficient length of time in which to alight from the car; (d) that they negligently and carelessly started the car in motion without warning plaintiff of their intention so to do; (e) that they negligently and carelessly operated and moved the car in such a manner as to cause plaintiff to be thrown with great force and violence to the pavement of said street.

The testimony of Mrs. Hallum fully sustained her allegations, and, further, she is corroborated by the circumstance of the seriousness and apparent permanency of her injuries. It is probable, and entirely reasonable, that a person of her weight (168 lbs.), thrown from the steps of a street car, striking the pavement on her right knee, would suffer serious injuries to her knee, hip, and spine, as testified to by her, whereas a fall on the level, caused by her heel slipping, as contended by the defendant, would not likely produce such serious consequences.

Defendant below combatted this theory, contending that Mrs. Hallum was not thrown from the steps of the car, but that, after being entirely clear of the car, in walking from the car to the curb, her heel slipped, she fell, and was in this manner injured. Defendant introduced three witnesses whose testimony supported its theory, which, if believed by the jury, would have resulted in a verdict in its favor.

The question presented to the jury was one of fact on conflicting evidence, a matter peculiarly within their province to settle, which they did, in favor of the plaintiff. Our duty in the premises is plain. The rule that must govern us is that the evidence favorable to the contentions of plaintiff in error will be rejected, and the evidence sustaining the verdict of the jury will alone be considered by the court.

As the evidence, in our opinion, fully justified the verdict of the jury on the issue of liability, we would not be warranted in disturbing the judgment on the ground urged in this assignment, and it is therefore overruled. Wick v. McLennan (Tex. Civ. App.) 186 S. W. 847; Ft. Worth & D. C. Ry. Co. v. Decatur, etc., Co. (Tex. Civ. App.) 193 S. W. 392.

2. It is contended in the fourth proposition that the verdict in favor of the plaintiff for $12,000 is excessive, and resulted from improper motives on the part of the jury.

With reference to this issue the facts are: That at the time of receiving the injuries complained of Mrs. Hallum was strong and healthy, 32 years of age, weighing 168 pounds, and had never suffered any irregularity in her menstrual periods. She was able to do all of her household work, including cleaning, washing, ironing, except the flat work; was a seamstress; did all of her sewing; made her husband's shirts; and, besides this, earned from sewing for the public from $3 to $8 per week. On account of the injuries she was confined in bed about 6 weeks, suffered intense pain, and thereafter, for 3 or 4 months, was compelled to use crutches in walking, and at the end of 2 years was still crippled and compelled to use a walking stick for support. At the expiration of something like 2 years the condition of her knee had improved, but was not normal, her right limb being enlarged in the vicinity of the knee, and her hip was in worse condition than at first and apparently will be permanently injured. Her rest at night was so disturbed that frequently, on account of pains in her hip, lower part of the spine, and at times reaching to her head, in order to induce sleep and rest, was compelled to apply a hot water bottle to her limb. Since receiving the injuries her menstruation has been irregular; the periods missing from 15 days to a month. She could not do all her work; was compelled to hire her sewing, washing, and ironing done; and was unable to sew for the public and earn money from that source. Other serious consequences of a delicate nature resulting from the injuries were shown to exist, indicating clearly the painful and probably permanent injured condition of her hip and spine.

Without attempting an analysis of the evidence, will simply state that, in our opinion, the verdict was authorized; that it is not excessive; and was not the result of improper motives on the part of the jury.

The rule that guides us to a correct solution of this matter was tersely stated by Judge Brady in Tex. Elec. Ry. Co. v. Whitmore (Tex. Civ. App.) 222 S. W. 644, in the following language:

"It is now settled law in this state that a verdict will not be disturbed upon appeal, unless it is manifestly excessive; and in deference to the verdict the appellate court is required to take the evidence in the view most favorable to the party recovering the damages."

The proposition just considered is overruled.

3. Plaintiff in error contends in its sixth proposition that the court erred in submitting to the jury the issue as to the negligence of both the conductor and motorman, or either of them, when; as contended by plaintiff in error, the specific allegations of the petition were confined to charges of negligence against the motorman only, and, further, that there was no evidence of any negligence on the part of the conductor.

In the second paragraph of this opinion we have given the substance of plaintiff's allegations, which clearly charge that the agents and servants (the motorman and conductor) of the defendant in control of the street car on the occasion in question were guilty of negligence in the respects specifically set out.

The charge of the court called in question is as follows:

Special issue No. 2:

"Do you find and believe from a preponderance of the evidence that the defendant, through either or both of its employés, was negligent while Mrs. Hallum was alighting from such car on such occasion?"

Special issue No. 3 was as follows:

"Do you find and believe from a preponderance of the evidence that the negligence, if any, of the defendant, through either or both of its employés upon such occasion, proximately caused plaintiff Mrs. Hallum to be injured?"

Without reproducing the evidence in detail, we state it as our conclusion, from a careful examination, that it sustained these allegations, and showed that the motorman and conductor acted together in operating the car; that the acts of starting and stopping were performed by the motorman, but were largely controlled upon signals given by the conductor.

Plaintiff in error cites a number of authorities to the effect that a charge must conform to and be supported by the pleadings, and that the issues of negligence submitted should at all times be confined to those both pleaded and supported by the testimony.

The rule of law contended for by plaintiff in error is correct, but, in our opinion, was in no respect violated by the trial court in the instant case. We therefore overrule this contention.

4. In its seventh proposition plaintiff in error insists that the question of compensation for the diminished capacity of Mrs. Hallum to work for others for pay in the past and in the future should not have been submitted to the jury, in the absence of testimony as to the amount of money she would have been able to earn in the future.

That part of the court's charge called in question is a part of special issue No. 5, reading as follows:

"What sum, if paid now, will reasonably compensate the plaintiff for * * * her diminished capacity * * * to do work for others for pay, if any, in the past, if there has been any in the past, and in the future, if you find there will be any in the future, which you find have been directly and proximately caused by the negligence, if any, of the defendant?"

The specific contention of plaintiff in error is that the evidence raises no issue as to any amount Mrs. Hallum would have been able to earn in the future.

We cannot accept the view...