Denison, B. & N. O. R. Co. v. Barry

• Decision Date: 21 November 1904
• Citation: 83 S.W. 5
• Parties: DENISON, B. & N. O. R. CO. v. BARRY.
• Court: Texas Supreme Court

Page 5

83 S.W. 5

DENISON, B. & N. O. R. CO. v. BARRY.

Supreme Court of Texas.

November 21, 1904.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by P. A. Barry against the Denison, Bonham & New Orleans Railroad Company. There was a judgment of the Court of Civil Appeals affirming a judgment for plaintiff (for opinion, see 80 S. W. 634), and defendant brings error. Reformed and affirmed.

Thurmond & Steger, for plaintiff in error. Taylor & McGrady, for defendant in error.

GAINES, C. J.

The defendant in error brought this suit against plaintiff in error to recover damages for overflows of a lot which he owned, and upon which he resided, alleged to have been caused by a dump constructed by the railroad company. The damages claimed were to the lot, to certain personal property, and for sickness of his wife, and the resulting expenses of such sickness. We deem it necessary to pass upon but two questions, and these require no detailed statement of the facts.

It is first complained on behalf of the plaintiff in error that the court erred in allowing damages for the sickness and mental suffering of the wife, and the expenses incident thereto. We are of opinion that the assignments which raised this question should have been sustained. The allegations with reference to this matter were that the overflow of May 18, 1902, "drove plaintiff and his family from his home, and kept them away from their home for three days, and subjected them to exposure and inclement weather, and greatly injured the plaintiff's wife, in this: that she was then in a state of pregnancy, and when said water backed up and over said lot and surrounding territory, and kept getting higher and up to the floor of the house, and even into the house, it greatly frightened plaintiff's wife, and presented the appearance of the water continuing to rise and drown her and other members of plaintiff's family, and so frightened her as to cause her great physical and mental injury and pain, and plaintiff in the exercise of ordinary care, and believing that his wife would be drowned if she remained in their home, he removed his wife therefrom, and to a place of safety, and, in so doing, necessarily subjected her to outdoor and inclement weather exposure, and such fright to plaintiff's wife and her exposure greatly shocked and made her sick, and thereby rendered very ill and confined to her bed for several weeks, and caused her to suffer great pains and shocks to her nerves, and pains about her womb, and threatened her with miscarriage for several days, and permanently impaired her health." The damages claimed in this particular we think entirely too remote. While in constructing its dump the defendant company should have foreseen that, in case the sluices and waterways provided should prove insufficient to allow a free passage of water, it might cause an overflow and damage to property situated near thereto, and upon the upper side thereof, it could not reasonably have been anticipated that the conditions would be such as to cause such a degree of fright to any one as to produce sickness or other physical injury. We think the case...