Dallas Ry. & Terminal Co. v. Hendrix

• Decision Date: 10 July 1953
• Docket Number: No. 14676,14676
• Citation: 261 S.W.2d 610
• Parties: DALLAS RAILWAY & TERMINAL CO. v. HENDRIX.
• Court: Texas Court of Appeals

Page 610

261 S.W.2d 610

DALLAS RAILWAY & TERMINAL CO. v. HENDRIX.

No. 14676.

Court of Civil Appeals of Texas, Dallas.

July 10, 1953.

Rehearing Denied Oct. 9, 1953.

Burford, Ryburn, Hincks & Ford and Bruce Graham, Dallas, for appellant.

W. D. Riley, Jr., Dallas, for appellee.

DIXON, Chief Justice.

This is a negligence case involving two automobile collisions. The first collision occurred in Dallas County, Texas on Sept. 16, 1950 between a car owned and operated by appellee, and a bus operated by an employee of the appellant. The second collision occurred in Tarrant County, Texas on Oct. 16, 1950, one month after the first collision. This second collision was between an automobile owned and operated by appellee and an automobile owned and operated by a third person who is not a party to this suit. Appellant was not in any way responsible for the Tarrant County collision-in fact had nothing to do with it. Nevertheless the damages adjudged against appellant were allowed in part on the theory that the injuries caused by appellant's negligence in the first accident retarded appellee's recovery from the injuries he received in the second accident. Appellee's total recovery was $1,391.65.

In the Dallas County collision on Sept. 16, 1950, in which appellant and appellee were both participants, appellee received a cut over his left eye which required eleven or twelve stitches; lacerations on his face and chest which were not serious; and an injury to his left knee which became infected a few days after the accident. His automobile was damaged to the extent of about $390. His doctor's bill was $50 or $60; ambulance bill $5; and hospital bill $9,20. Appellee lost about a week's time from his work as a result of the first collision.

The second collision in Tarrant County on Oct. 16, 1950, in which appellee and a third party were participants, had much more serious consequences. The third party was killed. Appellee's car was a total loss. Appellee himself suffered a fractured pelvis involving his hip, and a fractured left foot. His left knee had not completely recovered from its injury in the first accident, but was not re-injured in this second accident. He was hospitalized for nine weeks and later went back for another eight weeks. His hospital, doctor's and nurses' bills were more than $3,000.

Appellee himself testified that appellant did not cause the second collision, nor did anyone connected with appellant cause it; the second collision was caused by the negligence of the third party; but he did not sue the third party's estate because it had nothing from which payment could be effected.

The trial court submitted appropriate issues concerning negligence of the parties in the first accident. These were answered for appellee and against appellant. In connection with the damage issue respecting physical pain, doctor's and hospital bills, and diminished earning capacity, the court gave this instruction:

'You are instructed * * * that you can not and must not allow or fix any sum of money whatsoever as compensation to the plaintiff which resulted from the accident in which he was involved in Tarrant County on Oct. 16, 1950 * * * except as you may find from a preponderance of the evidence that said Dallas County collision may have retarded, if you find it did retard, the recovery of the plaintiff from the injuries received by him in the Tarrant County collision.' (Emphasis supplied.)

Appellee argues that the above instruction was proper because there was evidence to support a finding that appellee would have recovered sooner from his subsequent injuries, and with less pain and expense, but for the earlier injuries proximately caused by appellant's negligence in the first accident.

Appellant's first point on appeal is that the trial court erred in permitting the jury to allow plaintiff damages based on an alleged retarded recovered from the Tarrant County accident, occurring subsequent to the accident with appellant, and to which later accident appellant was not a party.

In connection with its first point appellant says that there was no evidence to support the court's instruction. We agree with appellant. We have carefully read and re-read the record and we find no testimony to the effect that appellee's recovery from his injuries received in the second collision was in fact retarded by his earlier injuries. Appellee himself testified that appellant did not cause the Tarrant County collision and his (appellee's) injured knee was not hurt again in the Tarrant County collision. His doctor testified that no infection in the knee reoccurred and that the hip infection following the second accident came in his opinion from the hip itself. Another doctor who attended appellee following the Tarrant County collision testified that appellee did not give him any history of a previous knee injury. This testimony certainly does not bear out appellee's allegation in his petition that the weakened condition of his knee 'greatly impeded and retarded plaintiff's recovery from the injuries sustained in the second accident.' There is no testimony from any witness that (to quote plaintiff's petition), 'as a result of the prior damage to plaintiff's knee and knee joint he was unable to exercise his leg so as to speed up and facilitate the recovery of his injured pelvis and foot.' The testimony does show that by the time of the second accident appellee was again driving his car and was exercising his injured knee to whatever extent was necessary in pushing in the clutch with his left foot.

Appellant says further that its negligence in the first collision cannot as a matter of law, be considered a proximate cause of retarding appellee's recovery from his later injuries, for the reason that the element of foreseeableness, is lacking.

That foreseeableness is a necessary element of proximate cause is too well settled as a matter of law to need...