Dallas Ry. & Terminal Co. v. Darden

• Decision Date: 30 November 1929
• Docket Number: (No. 3746.)
• Citation: 23 S.W.2d 739
• Parties: DALLAS RY. & TERMINAL CO. v. DARDEN.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

23 S.W.2d 739

DALLAS RY. & TERMINAL CO. v. DARDEN.^*

(No. 3746.)

Court of Civil Appeals of Texas. Texarkana.

November 30, 1929.

Rehearing Denied December 19, 1929.

Appeal from District Court, Dallas County; Royall R. Watkins, Judge.

Suit by George A. Darden against the Dallas Railway & Terminal Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Worsham, Rollins, Burford, Ryburn & Hincks, of Dallas, for appellant.

Smithdeal, Shook, Spence & Bowyer, of Dallas, for appellee.

HODGES, J.

This suit was filed by the appellee against the appellant to recover damages for personal injuries received in a collision between an automobile in which he was riding and one of appellant's cars. Negligence in several respects is charged in the petition, among them (a) the manner in which the car was being operated, and (b) the failure of the motorman to avoid the collision after the appellee's peril had been discovered. According to the testimony of the appellee he was the proprietor of a small drug store situated on Bowen street in the city of Dallas. On the day of his injury he started to deliver some merchandise to a customer. His car was parked almost in front of his store. Before getting into the car he looked in both directions to see if a street car was approaching, but saw none. He then started north in the direction of the place where his goods were to be delivered. In order to avoid a rough and unpaved portion of the street in front of the lot on which his store was situated he drove close to the street car track. While in that position the street car approaching from behind him struck his automobile, causing the injuries for which he sued. He testified: "The right-hand rail of the street-car track from the curb going from town is about 10 feet. The unpaved part of the street there is about — must be close to 6 feet. When I got my right-hand wheel on the paving going the direction I was going that afternoon, that would put the left-hand wheel of the automobile near to the far rail of the street-car track. I know what part of the automobile the street-car struck. It first struck the left rear corner. It broke the left wheel down and it turned around like it was on a pivot; just whirled the car around just square across the tracks and hit it again. Hit it from the side. It knocked it about, I imagine, about 10 feet; square across the track, and then run into it again; * * * The street-car did not stop then. It pushed it down the track about 50 feet. Before the street-car struck the automobile I had moved from the place where the car was standing when I got into it around 50 feet. I did not know the street-car was coming before it struck me. The first I knew there was a street-car on the block was when it hit me."

The appellant pleaded, among other defenses, contributory negligence and unavoidable accident. The court submitted several issues, in answer to which the jury found, in substance, as follows: (1) That defendant's employee operating the street car saw the automobile in which the plaintiff was riding, and realized the danger of a collision with the same in time so that by the exercise of ordinary care on his part to use all the means at his command, consistent with the safety of the street car and the passengers thereon, he could have avoided the collision. (2) That the operator of the street car was guilty of negligence in failing to avoid the collision and in failing to lessen the force of the impact by stopping the street car or lessening its speed, and that this negligence was a proximate cause of appellee's injuries. The jury did not answer issues Nos. 4, 5, and 6, because of the preceding answers. (3) That after the operator of the street car saw that that the plaintiff's automobile was moving he failed to sound his gong or give warning of the approach of the street car, and that such failure was negligence and a proximate cause of the plaintiff's injury. (4) That the street car was being operated at the rate of 25 miles per hour at the time the operator saw the plaintiff's car begin to move, and that the operation of the street car at that rate of speed was negligence and a proximate cause of the injury. (5) That the operator of the street car failed to exercise ordinary care to keep a lookout for the plaintiff, and that such failure was negligence and a proximate cause of appellee's injury. (6) That the operator of the street car failed to have his car under control, and that such failure was negligence and a proximate cause of the plaintiff's injury. (7) That the plaintiff was not guilty of contributory negligence in the several respects charged. (8) That the collision was not the result of an unavoidable accident.

On the measure of damages the court gave the following: "What sum of money, if any, if paid now, do you find would reasonably and fairly compensate the plaintiff for his lessened capacity to labor and earn money, if any, up to the present time, and for such lessened capacity, if any, as he may reasonably undergo in the future, if any, as a direct and proximate result of the injuries, if any, sustained in the collision in question on the occasion in question, and would reasonably and fairly compensate the plaintiff for such physical pain, if any, and mental anguish, if any, as he has suffered, if you find and believe that he has suffered any physical pain and mental anguish up to this time, and as he will reasonably and probably suffer in the future, if you find and believe that he will suffer in the future, as a direct and proximate result of the injuries, if any, sustained by him in the collision in question on the occasion in question?"

The jury estimated the plaintiff's aggregate damages at $7,000. Of that sum $80 was remitted, and judgment was entered for $6,920. The appellant contends that the pleadings and the evidence were sufficient to support a finding by the jury that the appellee's earning capacity had been diminished. A special exception to the appellee's petition presenting that objection and a similar objection to the charge on the measure of damages were overruled.

The appellee alleged in his petition that as a result of his injuries he had received a deep cut across his left eye which affected the sight of that eye, and that his vision had been greatly impaired, his spine severely wrenched and bruised, the ligaments of his back torn, and all parts of his body badly bruised; that a pre-existing diseased condition was aggregated so that he is "now suffering from Cerebro-Arteriosclerosis upon which has been superimposed a Psycho-neurosis, hysterical in type; that this psychoneurotic condition is manifest by an extreme nervousness, pain in the back, frequent involuntary jumping movements, and fatigue;" that he suffers from a faulty memory, defective vision, headaches, and dizziness and a severe functional disturbance of his entire central nervous system; that by reason of his injuries his capacity to labor and earn money had been completely destroyed up to that time, "and plaintiff says will be greatly, if not completely, impaired and destroyed for all future time." He testified that he owned a small drug store situated on Bowen street, and waited on his trade himself. In describing his business he stated: "My trade out there was largely a curb trade. Before this injury I waited on it. Since my injury I have not been able to do that like I did before. The effect of my inability to wait on the curb trade is that I have lost my trade. I can't wait on the trade now like I did then. I would jump to the door, jump out and give them quick service, and that is what they liked. Now I have to get out those steps very carefully and slow. The effect on my earnings has been very bad. I had a nice little business before I was injured, and I don't think that I have lost less than $100.00 a month, if not more, since my injuries, by reason of my inability to wait on the trade. I say I don't think it has been less than $100.00 a month, if not more."

Referring to his nervous condition, he said: "It is awful and I can not control it. It jerks me and grips me all over my body. I have absolutely no knowledge that it is coming on until it is over with, or until it is being done. I never can tell. I don't know. It just comes of its own accord. I may have two or three, one right after...