Galveston, H. & S. A. Ry. Co. v. Brassell

• Decision Date: 13 January 1915
• Docket Number: (No. 5399.)
• Citation: 173 S.W. 522
• Parties: GALVESTON, H. & S. A. RY. CO. v. BRASSELL et ux.
• Court: Texas Court of Appeals

173 S.W. 522

GALVESTON, H. & S. A. RY. CO. v. BRASSELL et ux.

(No. 5399.)

Court of Civil Appeals of Texas. San Antonio.

January 13, 1915.

Rehearing Denied February 24, 1915.

Appeal from District Court, Gonzales County; M. Kennon, Judge.

Action by J. M. Brassell and wife against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Baker, Botts, Parker & Garwood, of Houston, and Harwood & Miller, of Gonzales, for appellant. E. B. Cocke, of San Antonio, for appellees.

FLY, C. J.

This is a suit for damages to Mrs. Maggie Brassell, instituted by her and her husband, J. M. Brassell, alleged to have accrued from personal injuries inflicted upon her by a fall from the steps of a car belonging to appellant. It was alleged that she was a passenger on the train of appellant, and that when she attempted to alight, at her destination, she fell and was injured by reason of the negligence of appellant in failing to provide a suitable place for passengers to leave the train, in not providing some one to assist passengers in alighting. The cause was tried by jury, and resulted in a verdict and judgment for appellees in the sum of $6,000.

There is no necessity for joining the wife with the husband in cases of this character; but as no objection was interposed to the joinder, and no injury probably resulted therefrom, it is permitted. Railway v. Baumgarten, 31 Tex. Civ. App. 253, 72 S. W. 78. We merely call attention to it in order that this case may not be taken as a precedent for joining the wife with the husband, to recover damages to her person.

The facts of this case show that on June 24, 1913, Mrs. Brassell, in getting off a train at Sutherland Springs, fell to the ground. She got up, walked to the picnic grounds, and spent the day there, returning to her home at night. The next morning she arose and prepared breakfast, and at noon prepared dinner. She had some bruised spots about her knee and some swelling from the knee down. She walked from the train to and from the picnic grounds without assistance. Mrs. Brassell, when she fell, stated that her "shin was skinned," but spoke of no other injuries. When she reached home she got out of the coach "just like any other passenger and walked home," a distance of 600 yards. She was hurt on Tuesday, and called in her family physician on Thursday. She went to church on the following Sunday night. She did not use crutches for a week or more after the accident, and then not until advised to do so by the doctor. No bones were broken or fractured, and the skin was not broken in any place. Her doctor thought that the sciatic nerve was probably injured, but was not certain, and all his prognostications of trouble were based on the hypothesis that the nerve was injured. He testified that, if that nerve had been severely injured, it would have shown immediately, but that a slight injury "would take several days to develop." He diagnosed the case as "traumatic sciatica," but stated that "it is very rare that sciatica is caused by a traumatic injury." He said that when he last examined Mrs. Brassell "her limb was absolutely normal." She did not lose any weight. Two other physicians examined Mrs. Brassell about a year after she was hurt and found her limb normal. She complained of soreness in certain spots that were touched, but the examination was merely subjective, and depended on her statements alone. There was nothing visible to show any injury whatever. Her physician stated that he thought "Mrs. Brassell, in course of time, would absolutely recover." Some, at least, of the pains complained of, had no connection with her fall, according to the testimony of the physicians.

The burden of showing contributory negligence never shifts to the plaintiff, whatever may have been the ruling of the Supreme Court to the contrary formerly. Whenever the evidence offered by a plaintiff shows contributory negligence on his part, a verdict should be instructed for the defendant. The burden has not been shifted to him, but he has merely failed to make out his case. As long as there is a question of fact to be submitted to a jury, the burden of establishing negligence rests on him who alleged it. The court did not err in this case in placing the burden upon app...