Galveston, H. & S. A. Ry. Co. v. Powers
| Decision Date | 04 December 1907 |
| Parties | GALVESTON, H. & S. A. RY. CO. v. POWERS. |
| Court | Texas Supreme Court |
Action by James Powers against the Galveston, Harrisburg & San Antonio Railway Company for injuries sustained while in defendant's employ. From a judgment for plaintiff (101 S. W. 250), defendant brings error. Reversed and remanded.
Baker, Botts, Parker & Garwood, Newton & Ward, and W. B. Teagarden, for plaintiff in error. James Routledge and J. R. Norton, for defendant in error.
James Powers was in the employ of the plaintiff in error working with a gang of men on a new bridge over the Brazos river. He, with other men, was ordered by the foreman of the gang to go upon the floor of the bridge, which was suspended upon false works of considerable height. The false works were constructed of heavy timbers, and about 40 to 50 feet above the water. The Court of Civil Appeals finds that the foreman negligently ordered two of the bents of the false works to be thrown against the other bents, and thus to knock the whole down into the water, whereby Powers was thrown into the water and received injuries about his head and otherwise. No question is presented to us depending upon the fact of negligence on part of the railway company. Therefore we will not enter into a detailed statement of the facts of the case.
In the course of the trial Dr. Berry was on the stand as a witness for the plaintiff, Powers, and counsel for him related to Dr. Berry a state of facts as the basis of testimony sought to be elicited from him as an expert. A number of questions were propounded and objected to, and they were put in different forms thereafter, without repeating the hypothetical case, but by referring to it as that which had been already stated. Counsel for the plaintiff propounded to Dr. Berry this question: "Doctor, taking into consideration the fall, which I have described, that the plaintiff received, the condition of the wound upon his head that he received from the fall, and taking into consideration that he was delirious at intervals of 24 to 36 hours after receiving the fall, I will ask you, in your opinion, whether or not it is possible that years from now, as a result of that injury, a man can become epileptic." Defendant's counsel objected to this question, because the testimony sought to be elicited was immaterial, irrelevant, and speculative in its character, and that there had been no evidence or symptoms of epilepsy introduced, which objections were overruled. The railroad company by its attorney assigned error in the Court of Civil Appeals as follows: "The court erred in permitting plaintiff's counsel to propound to his witness, Dr. Berry, the following question: `Doctor, taking into consideration the fall, which I have described, that the plaintiff received (that is, being thrown from the top of an object, which the testimony shows ranges from 40 to 50 feet in height), and striking upon some other body, and then falling into the water, and when he was taken from the water it was discovered that he had this blow on the back of the head, and from 24 to 36 hours afterwards he was delirious at times, in a semiconscious condition ...
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Smith v. Smith
...being the same in cases of tort as it is in cases of breach of contract." Id. at 993. See also Galveston, Harrisburg & San Antonio Ry. v. Powers, 101 Tex. 161, 105 S.W. 491 (1907); Kingham Messenger & Delivery Service, Inc. v. Daniels, 435 S.W.2d 270, 273 (Tex.Civ.App.--[14th Dist.] 1968, n......
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Ft. Worth & D. C. Ry. Co. v. Taylor
...to recover only such damages "as are with reasonable probability likely to result." The Supreme Court in the case of Railway Co. v. Powers, 101 Tex. 161, 105 S. W. 491, said that a question asking for an opinion from a physician as to the probability of epilepsy resulting from injury was im......
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American General Insurance Company v. Barrett
...is no evidence that the skull fracture caused or contributed to cause death. In support of this contention, Galveston, H. & S. A. Ry. Co. v. Powers, 1907, 101 Tex. 161, 105 S.W. 491, and Galveston, H. & S. A. Ry. Co. v. Henefy, Tex.Civ.App.1909, 115 S.W. 57 (er. ref.) are cited as Each of t......
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Texas Employers' Ins. Ass'n v. Jimenez
...the authorities that appellant requests us to carefully examine, but all others cited by it. It is quite true, as held in Ry. v. Powers, 101 Tex. 161, 105 S. W. 491, "Neither expert witnesses nor the jurors may be turned loose in the domain of conjecture as to what may by possibility ensue ......