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

• Decision Date: 21 January 1903
• Parties: GALVESTON, H. & S. A. RY. CO. v. BAUMGARTEN et ux.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

72 S.W. 78

GALVESTON, H. & S. A. RY. CO. v. BAUMGARTEN et ux.^*

Court of Civil Appeals of Texas.

January 21, 1903.

Appeal from district court, Bexar county; S. J. Brooks, Judge.

Action by Emil H. Baumgarten and wife against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Newton & Ward and Baker, Botts, Baker & Lovett, for appellant. Robson & Duncan, Perry J. Lewis, and H. C. Carter, for appellees.

FLY, J.

This is a suit instituted by Emil H. Baumgarten and Susie J. Baumgarten to recover damages alleged to have been received by the latter through the negligence of appellant in having a decayed culvert, through which the horse of Mrs. Baumgarten fell, and she was thereby precipitated from her buggy, and permanently injured.

The statement of facts justify the conclusion that Mrs. Baumgarten, while crossing a culvert erected and maintained by appellant on one of the streets of the town of Schulenburg, in her buggy, was thrown from the same, and seriously and permanently injured. The accident to Mrs. Baumgarten occurred by reason of the planks having been negligently allowed to become rotten on appellant's culvert, and the horse's feet broke through, and by his struggles Mrs. Baumgarten was thrown violently to the ground, and appellees sustained damages in the sum found by the jury. The negligence of appellant in permitting the culvert to remain in its decayed condition was the cause of the injury.

This suit was instituted on July 8, 1901,— one day before the act of the legislature entitled "An act to fix the venue of suits against railroad corporations," etc., went into effect. Gen. Laws 1901, p. 31. Appellant demurred to the petition and filed a plea to the jurisdiction on the ground that the injury of which complaint was made occurred on July 25, 1900, in Fayette county, and that the plaintiffs resided in Fayette county, and therefore said suit could not be prosecuted in Bexar county, but could only be prosecuted in Fayette county, where the plaintiffs reside, and where the injury occurred. It is the contention of appellant that every pending suit was affected by the passage of the act, and that, wherever a suit was pending in a county where the plaintiff did not reside or where the injury was inflicted, the court in which it was pending was at once deprived of jurisdiction to try it. Appellant, on October 7, 1901, by filing a general demurrer and general denial, waived all questions of venue, and gave the district court of Bexar county jurisdiction, whatever may have been the effect of the statute in question. The demurrer and plea to the jurisdiction were filed May 19, 1902. That statute, like any other of its class, is one of personal privilege, and can be and was waived by the voluntary appearance of appellant. We see no question of public policy that was to be subserved by its passage, or that will be interfered with by a waiver of it on the part of a railroad corporation.

On the trial of the cause, Dr. Owens, who had treated Mrs. Baumgarten while suffering from her injuries, after he had fully described the nature of her injuries, was asked: "Assuming that the testimony in the case showed that Mrs. Baumgarten was a strong, healthy woman, and that she met with an accident, being thrown from a buggy, and received several very severe bruises, one on the small of the back, and a number of severe bruises were indicated on her person, and since that time she has not been well, what, in your opinion, would be the cause of her present conditions?" He answered, "I would be bound to consider it came from the accident, in the absence of anything else." The question and answer were objected to on the ground that the question was not sufficiently specific to form the basis for an opinion, and because it sought to elicit an opinion upon a hypothetical case not sustained by the evidence. The trial judge states that the witness was placed on the stand before the facts of the case had been developed, because he was compelled to leave, with the understanding that the evidence would be withdrawn from the jury unless the hypothetical case was sustained by the testimony. The testimony did fully support the hypothetical case, and the question was sufficiently specific to form a basis for the opinion of the physician. The doctor, previous to the answer to the hypothetical question which was put to him, had testified that when he first examined Mrs. Baumgarten she had a swelling in the lumbar region of the back, and there was other testimony to the effect that she was bruised on her breast, hip, knee, and wrist, and that she had received the injuries in the accident upon which this suit is based. Previous to the time of the accident she had been a strong, healthy woman, and since had not been well. On the cross-examination, by appellant, of Dr. Harrison, a witness for appellees, the opinion was elicited that the condition of Mrs. Baumgarten was the result of a physical injury, and on the redirect examination the witness was asked, "From your examination of Mrs. Baumgarten, what, in your opinion, produced the condition she was in?" He answered, "I have already stated that I believe the preponderance of testimony takes me to the conclusion that the condition she was in was the result of physical injury, traumatism, violence." The appellees then asked what the witness meant by "preponderance of testimony," and he answered: "Embodies a consideration of all the facts in connection with the case that have come within my knowledge,—physical conformation, the condition of the bruises as I found them,—and the circumstances which have resulted in those conditions appealed to my mind, and I selected that which my judgment told me is the most probable." Appellant then moved that the testimony be excluded on the ground that it was hearsay, irrelevant, and not the subject of expert testimony. The court then said to the witness, "Do you mean by `preponderance of testimony' something you have heard?" and he answered, "No, sir; I mean that which comes within my observation." The court then said. "Nothing she or any one else told you?" and the witness replied: "No, sir; it is what I found. I find a woman of fine proportion, and I take into account the facts that have come to my own personal knowledge." The court then said, "You don't base it on anything she or any one else told you?" and the witness answered in the negative. The evidence was admissible. Railway v. Burnett, 80 Tex. 536, 16 S. W. 320; Railway v. Williams (Tex. Civ. App.) 62 S. W. 808. There is no merit in the sixth assignment of error. The question was not leading, and the answer was material as to the issue of the condition of Mrs. Baumgarten's health before the accident. The issue was presented by the petition.

The seventh assignment of error complains of a certain question...