Ft. Worth & D. C. Ry. Co. v. Partin

• Decision Date: 27 June 1903
• Citation: 76 S.W. 236
• Parties: FT. WORTH & D. C. RY. CO. v. PARTIN et ux.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

76 S.W. 236

FT. WORTH & D. C. RY. CO. v.PARTIN et ux.^*

Court of Civil Appeals of Texas.

June 27, 1903.

Appeal from District Court, Hall County; Sterling P. Huff, Judge.

Action by P. H. Partin and wife against the Ft. Worth & Denver City Railway Company.From a judgment for plaintiffs, defendant appeals.Affirmed.

Stanley, Spoonts & Thompson and J. H. Barwise, Jr., for appellant.G. A. Brown and A. W. Cole, for appellees.

SPEER, J.

P. H. Partin, unnecessarily joined by his wife, instituted this suit to recover damages for the most part for personal injuries received by the latter in consequence of her team becoming frightened at the whistling of one of appellant's locomotives, causing it to run away and upset the buggy in which she was riding.The verdict and judgment were for $500 for the personal injuries and $25 for the damages to the buggy and harness.

The first assignment presents no error, because the bill of exception taken to the court's refusal to grant the continuance neither includes the application nor in any other manner brings the same before us for consideration.The instrument contained in the transcript is not, therefore, properly a part of the record.C., R. I. & T. Ry. Co. v. Long, 74 S. W. 59, 7 Tex. Ct. Rep. 378.We have read the application, however, and think the court committed no error in refusing it.The original petition described the injuries as follows: "Caused said horses to run away, throwing plaintiffMrs. N. L. Partin violently on the ground on her side, causing her great pain.That she was injured both externally and internally, causing her much mental anguish and suffering, and is at this date (twelve days after the accident) unable to be out of bed, or attend to her accustomed duties.That she is still suffering much pain on account of the said acts of the defendant, and that said injury to her is permanent, and it is doubtful if she will ever be able to attend to her household affairs again."The amended petition filed upon the eve of the trial to some extent amplified the above in this wise: "* * * Throwing the plaintiffN. L. Partin violently on the ground, breaking one of her ribs, bruising her side, shoulder, and hip."This was not such an amendment as was calculated to surprise the defendant.The allegations of injuries contained in the original petition were general, it is true, but specific in the respect that they were produced by plaintiff having been thrown violently on the ground on her side, and this we consider reasonably sufficient to apprise the defendant of probable injury to the ribs, shoulder, and hip, all these parts of the human body being included in the somewhat comprehensive term "side."Gulf, C. & S. F. Ry. Co. v. McMannewitz, 70 Tex. 73, 8 S. W. 66;Missouri, K. & T. Ry. Co. v. Edling(Tex. Civ. App.)45 S. W. 406;Same v. Walden(Tex. Civ. App.)46 S. W. 87;City of Dallas v. Jones(Tex. Civ. App.)54 S. W. 606.

The court defined negligence to be the want of such care and caution as an "ordinary prudent man" would exercise under the same circumstances.The use of the word "ordinary" in this connection, instead of the preferable word "ordinarily," is not material, especially when the entire context of the charge is considered.San Antonio Gas Co. v. Robertson(Tex. Civ. App.)55 S. W. 347, reversed upon other grounds (Tex. Sup.)56 S. W. 323;Houston & T. C. Ry. Co. v. Milam(Tex. Civ. App.)58 S. W. 735.

Immediately after the accident the husband and another went to the scene, and found Mrs. Partin lying on the ground where she had been thrown out of the buggy.After working with her about 20 minutes, she regained consciousness, and in response to a question from her daughter as to what her condition was she stated, "Thank God! my children are saved, though I am killed."There was no error in permitting the witnesses to detail this statement.It was res gestæ.The latter part was clearly indicative of her pain and suffering, and so intimately associated with the catastrophe as to be a part of it.The very language excludes the idea of fabrication.International & G. N. Ry. Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902;Texas & Pacific Ry. Co. v. Robertson, 82 Tex. 657, 17 S. W. 1041;Same v. Hall, 83 Tex. 675, 19 S. W. 121.The appellant should not complain that in the same breath she thanked God that it had not killed her children also.It tended in no way to show mental suffering on account of her children, but rather it was an exclamation of joy immediately upon regaining consciousness that her children were uninjured.For the mental suffering growing out of the apprehensions for her own life she was entitled to recover.

The court's charge sufficiently presented the appellant's defense of contributory negligence, and there was, therefore, no error in refusing special charges upon that issue.

Neither was there error in refusing the third special charge.We do not think it is the law that, before the jury ...