Dallas Ry. & Terminal Co. v. Aultman

• Decision Date: 07 November 1952
• Docket Number: No. 14549,14549
• Citation: 253 S.W.2d 900
• Parties: DALLAS RAILWAY & TERMINAL CO. v. AULTMAN et al.
• Court: Texas Court of Appeals

Page 900

253 S.W.2d 900

DALLAS RAILWAY & TERMINAL CO. v. AULTMAN et al.

No. 14549.

Court of Civil Appeals of Texas, Dallas.

Nov. 7, 1952.

Rehearing Denied Dec. 26, 1952.

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

Irwin & Irwin, George Irwin, Chas. E. Long, Jr., and Lucian Touchstore, Dallas, for appellees.

CRAMER, Justice.

T. D. Aultman, Jr., and wife, Mildred L. Aultman (hereafter called Aultman) filed this suit in the District Court for damages for personal injuries to Mrs. Aultman while riding as a passenger on a Dallas Railway & Terminal Company (hereafter called Railway) Kessler bus, westbound on Commerce Street near the triple underpass in the City of Dallas, when said but collided with the rear end of a truck owned by Packer Corporation of Texas (hereafter called Packer), when Packer's truck was making a stop at a changing signal light for traffic at said intersection. Aultman sued both Packer and Railway in the trial court, who each pleaded over against the other for indemnity and contribution. At the conclusion of the evidence, the case was submitted to a jury, and, based upon the answers of the jury to special issues submitted, the court rendered judgment in favor of Aultman against Railway for the sum of $10,065.50 and in favor of Packer Corporation that no recovery be had against Packer. Railway filed its motion for new trial, setting up, among other assignments, improper argument on the part of Aultman's counsel in his opening argument, and in undue limitation by the trial court of Railway Company counsel's argument After the amended motion for new trial was overruled, this appeal was duly perfected therefrom.

Railway briefs three points of error. Points 1 and 2 relate to Aultman's argument and complain of the trial court's overruling of its objection to the following:

'(1) If there was one single thing untrue about Dr. Jackson's testimony, one iota of it, why didn't they bring up the doctor? Why didn't they bring somebody to refute what evidence there was, that wasn't true? They had every opportunity in the world to do it and they haven't done it.'

'(2) They sought to infer that she was not competent, but they did not come forth with any evidence that she was not competent. And they did not come forth with Dr. Loiselle to show that his findings were different from hers.'

Aultman counters that the argument complained of '* * * is a fair comment and discussion of facts and issues raised and presented by the evidence, and is fully justified by the record * * *,' and correctly overruled by the trial court.

The evidence which Aultman asserts justifies the argument was that the Railway's bus on which they were riding as farepaying passengers collided with the rear of Packer's truck, which threw Mrs. Aultman out of her seat and forward against a bar back of the operator and back against the seat where she had been sitting, causing her serious injury. Mrs. Aultman was conveyed by ambulance to Parkland Hospital in Dallas, where she was confined to a bed with boards under it, part of her body raised, other parts lowered, for eight days. Her pain was continuous when in the hospital and has never completely stopped. After leaving Parkland, she was confined to bed at hom of her husband's mother for three weeks.

Mrs. Aultman was a part-time professional dancer, earning an average of $700 per year. Her work required great physical strength, agility, and skill. She will not be able to continue that work. Her witness, Dr. Fry, testified that he had been Mrs. Aultman's doctor for three or four years prior to the accident; he had examined her before the accident, at which time he found her pregnant but otherwise in good physical condition. He visited and examined her three times while she was at Parkland; examined her later, about April 20, and found that while she was 3 1/2 months pregnant, the fetus in the womb was not developing,-or was dead. He delivered the dead fetus at St. Paul's Hospital on May 1; that the blow received in the accident was the reason for and brought about the delivery on May 1st. Aultman's witness, Dr. Ruth Jackson, testified to a thorough orthopedic examination and X-rays on May 10th; had examined Parkland's X-rays and had talked with Dr. Loiselle, resident orthopedic physician at Parkland, about Mrs. Aultman's condition.

In answer to hypothetical questions, Dr. Jackson testified that a...