Garza v. San Antonio Transit Co.

• Decision Date: 10 May 1944
• Docket Number: No. 11409.,11409.
• Citation: 180 S.W.2d 1006
• Parties: GARZA et ux. v. SAN ANTONIO TRANSIT CO.
• Court: Texas Court of Appeals

180 S.W.2d 1006

GARZA et ux. v. SAN ANTONIO TRANSIT CO.

No. 11409.

Court of Civil Appeals of Texas. San Antonio.

May 10, 1944.

Rehearing Denied June 7, 1944.

Appeal from District Court, Bexar County; John F. Onion, Judge.

Suit by Tomas G. Garza and Santiaga Garza, his wife, against the San Antonio Transit Company for injuries allegedly sustained by Santiaga Garza when she attempted to board defendant's bus. From a judgment on a verdict for defendant, plaintiffs appeal.

Affirmed.

G. Woodson Morris, of San Antonio, for appellants.

W. F. Nowlin and Grady Barrett, both of San Antonio, for appellee.

MURRAY, Justice.

This suit was instituted by Tomas G. Garza and wife, Santiaga Garza, against the San Antonio Transit Company, a corporation, seeking to recover damages allegedly resulting from injuries received by Santiaga Garza when she attempted to board a bus operated by the Transit Company. The cause was submitted to a jury upon special issues and, in keeping with the verdict of the jury, judgment was rendered that the plaintiffs recover nothing from the defendant.

From this judgment Tomas G. Garza and Santiaga Garza have prosecuted this appeal.

Appellants first complain because the trial court admitted in evidence the chart of the patient Santiaga E. Luna (now Santiaga Garza) kept as the "Clinical Record" of the Robert B. Green Memorial Hospital.

Miss Fertsch, Record Librarian at the Robert B. Green Hospital, under subpoena duces tecum, testified that she had charge of the records of that hospital; that the Robert B. Green Hospital was a public hospital maintained and operated by the County of Bexar and the City of San Antonio; that she was familiar with the routine of keeping the records; that the rules require a record to be made of the patient and the record is kept up from day to day by the various doctors who have charge of the case, and when a case is closed, the records come into the record room of which she had charge; that the records brought with her were the regular records kept by the hospital in connection with Mrs. Santiaga Luna; that the hospital maintains records at this time similar to the 1929 records having the same information on it, the difference being in the form as to how it opens; the contents are the same; that the records of the hospital now are similar to the records just introduced in evidence and contain the same information. The original records admitted in evidence are sent up as Exhibit No. 4 accompanying the Statement of Facts. Examination of these exhibits shows that they are authentic original records of the hospital as to the patient, kept in substantial conformity with Art. 4485, Vernon's Tex.Ann.Civ.Stats., containing "name, age, sex, color, marital condition, residence, occupation and place of past employment," and a record "of the condition of each patient when admitted and from time to time thereafter." The records bear original signatures of persons who purport to have been the various doctors who had charge of the various operations performed on the patient. It is undisputed that the charts admitted in evidence cover the appellant, Mrs. Santiaga Garza, then Mrs. Santiaga Luna.

It appears that the superintendent of the hospital had appointed Miss Fertsch as custodian of the hospital records and had placed her in charge thereof. She testified that the hospital was a county hospital, mtaintained by Bexar County, Texas, and the City of San Antonio, and, as such hospitals may be established by counties only under the authority of Art. 4478, Vernon's Texas Ann.Civ.Stats., we presume that the Robert B. Green Hospital was established under the authority of Art. 4478, supra. Art. 4485, Vernon's Tex.Ann.Civ.Stats., authorizes and requires the superintendent of a county hospital to cause to be kept records of each patient admitted showing their name, age, sex, color, marital condition, residence, occupation and place of past employment and, further, the condition of each patient when admitted and from time to time thereafter. The record offered in evidence was shown to be such a record and was therefore a public record and properly admitted in evidence. Dallas Coffee & Tea Co. v. Williams, Tex.Civ.App., 45 S. W.2d 724. Appellants' first point is overruled.

Appellants' second and third points are as follows:

"Second Point. Where the proof on the part of plaintiff showed that as she attempted to board defendant's bus and while on the outside thereof, the driver of the bus closed its doors on her left hand and then started the bus forward suddenly, thereby injuring her left hand and other parts of her body, from which she was still suffering at the time of the trial, it was error for the Court to permit, over objection, defendant to show by a female witness that she, with the aid of other employees in the operation of what defendant claim as the same bus, had experimented with the doors by having the operator of the bus close the doors on her hands and starting the bus forward, because same could serve as no test or criterion in this case, since neither the physical facts nor a person in the same mental and physical condition as the plaintiff were possible of reproduction.

"Third Point. It was error for the Court to permit, over objection, the witness, Lawrence McInerny, to testify that he had put his hand in the doors and allowed them to be closed thereon without hurting them, because the circumstances were not shown to be in any wise the same as in the instant case."

The record shows that evidence as to the experiments was admitted. In addition to the experiments the record further shows that the middle door of bus No. 171 (the bus involved in the alleged accident) is two doors that join together when they close and they fold twice to each side and that the edges of the doors are composed of a rubberized material that form a kind of rubber cushion.

Mrs. Garza had testified that when she attempted to board the bus the operator of the bus closed the middle doors on her hand, thereby injuring her hand and, further, that when the bus started up with a jerk she was further injured. There was nothing improper in Mrs. Garza's attempting to enter the middle door, as she had been ordered to transfer, along with other passengers,...