Ft. Worth & R. G. Ry. Co. v. McMurray

• Citation: 173 S.W. 929
• Decision Date: 12 December 1914
• Docket Number: (No. 8061.)
• Parties: FT. WORTH & R. G. RY. CO. v. McMURRAY.
• Court: Court of Appeals of Texas

173 S.W. 929

FT. WORTH & R. G. RY. CO. v. McMURRAY.

(No. 8061.)

Court of Civil Appeals of Texas. Ft. Worth.

December 12, 1914.

Rehearing Denied January 16, 1915.

Error from District Court, Erath County; W. J. Oxford, Judge.

Action by Mrs. Nellie McMurray against the Fort Worth & Rio Grande Railway Company. There was a judgment for plaintiff, and defendant brings error. Reversed and rendered.

Marshall Ferguson, of Stephenville, for plaintiff in error. Chandler & Pannill, of Stephenville, and R. F. Milam, of Ft. Worth, for defendant in error.

DUNKLIN, J.

In the town of Dublin, the roadbed of the Ft. Worth & Rio Grande Railway was so constructed as to leave a ditch at the outer edge of the right of way and near the railway station, into which ditch water drained from a leaky water tank maintained by the company, and from land contiguous to the right of way. For lack of sufficient outlet, the water accumulating in the ditch formed a pool, estimated by different witnesses to be from 1 foot to 5 or 6 feet in width, from 3 feet to 60 feet in length and a few inches in depth; the size of the pool varying with the rainfall, but never going entirely dry. The railway company also maintained a toilet upon its right of way within a few feet of the pool, the refuse from which was washed into the pool. Water accumulating in the pool, under the circumstances recited, became stagnant and especially offensive by reason of the drainage from the toilet and mosquitoes in great numbers bred therein, to the annoyance of citizens living in that immediate vicinity. A. J. McMurray with his family resided on a lot contiguous to the pool and his dwelling was situated at a distance therefrom, estimated by different witnesses to be from 30 feet to 60 feet. During the first portion of February, 1912, Mr. McMurray became ill, and his illness continued until his death, which occurred April 30, 1912. This suit was instituted by his widow and children against the railway company for damages sustained by them by reason of his death which plaintiffs alleged was caused by the negligence of defendant in so constructing its roadbed as to cause the formation of said ditch; in permitting water to escape from its water tank and accumulate in the ditch; and in maintaining the toilet at the place noted. Upon the cause of action so alleged, plaintiffs recovered a judgment for $3,500, from which the defendant has prosecuted this writ of error.

Several physicians testified upon the trial, including the family physician, who attended the deceased from the inception of his illness up to about two weeks prior to his death, at which time he was carried from his home in Dublin to a hospital in Ft. Worth, where a surgical operation was performed upon him shortly before his death. That operation disclosed, beyond controversy, that the deceased was afflicted with abscess of the liver, by reason of which a great quantity of pus had accumulated around the liver and in the plural cavity of one side of the body; and the physicians testifying all agreed that the immediate cause of death was abscess of liver so discovered.

Dr. E. D. Winters, witness for plaintiff, the physician who first treated the deceased, testified:

"I am a physician. I have been practicing medicine about 18 or 19 years. I live at Dublin, and was acquainted with A. J. McMurray in his lifetime. I attended him in his last sickness. During his last sickness he lived near the Frisco, Depot, east of the depot; I guess 40 or 50 feet from the depot. I think it was the latter part of 1912 that I was called to see Mr. McMurray. I guess it must have been somewhere between 8 and 10 weeks that I attended him, probably about 10 weeks. When he was first taken, I made one trip and didn't see him any more for a few days, and from that time on I saw him usually once a day. When I first visited him, I found him suffering from la grippe. Mr. McMurray was a stout and robust man. I suppose he would have weighed 200 pounds, heavy set, chunky fellow. I considered him to be a real sick man the first time I visited him. He was complaining of his bones and muscles aching, and he had a severe headache. His tongue was coated. His skin at that time looked reasonably well. I found no other symptoms except la grippe at that time. In about a week or ten days after that time, I made a blood test and found he had some malaria in his blood. By blood test, I mean I got a specimen of the blood and put it under the microscope and found he had malaria in his blood. I found what you would term malaria germs. The malaria symptoms increased. After I discovered that he had malaria, I went there from once to twice a day until he left there to go to Ft. Worth. I suppose three or four weeks from the time I made that test. I did not test him for typhoid. He had fever up to about the third week, and was then clear of fever about the third week; he was then clear of fever for about a week, and then his fever returned. His fever at first ran very high, as high as 104. He got to having chills; had two or three chills. His fever would rise, and after a few hours would go down, but not entirely down. The second chill he had was when I made the blood test. I was present when he had a chill. I thought that chill was due to malaria in the blood. His temperature went below normal after the second, or probably the third, chill, until finally there was a period when he didn't have any fever. After Mr. McMurray was clear of fever a few days, he began to complain of a pain in his right side, and his skin began to get yellow. His skin getting yellow might be an evidence of several things, but my opinion was that he was possibly having a formation of an abscess in the liver, and the discoloration was due to the locking up of the bile in the liver. This gradually developed until he had an abscess of the liver, which finally killed him. It is possible, I believe, for malaria to cause abscess of the liver, but is not given. I don't know in what way it is possible. An abscess of the liver can be caused by traumatism, a lick, or bruise over the liver. I had no evidence of that in this case. A man might by swallowing a fish bone or a pin cause abscess of the liver. I have nothing like that in this case. I inquired about that. We have different germs that might affect the liver or block the duct. My books teach that it is possible for malaria to produce abscess, but does not explain how it is done. This case was a chronic case. * * * We sometimes find the liver large when we have malarial poison, but don't know how it does that. The liver is the separator of the poison from the impure blood. When a crop of malaria germs matures, they die, and it is the remains of the dead germs that cause the fever. This malarial poison goes through the blood, and, of course, the blood going through the liver carries the poison through the liver. * * * The malaria had been distributed over Dublin in the fall. It was no worse in the neighborhood of this pool than anywhere else in Dublin that I know of. I was a practicing physician in Dublin at that time. There were no more cases in Dublin, outside of McMurray's case, in that neighborhood that I can recall. There were a number of cases in the fall and summer before, in other places in Dublin. And a mosquito in the fall or summer might have bitten some child or other person that had malaria and then bitten McMurray, and he could have taken it from that, and it could not be told where the mosquito came from. He might have come out of a pool where the child had malaria, or he might have come out of...