Green v. Houston Electric Co.

• Decision Date: 13 October 1905
• Parties: GREEN v. HOUSTON ELECTRIC CO.
• Court: Texas Court of Appeals

89 S.W. 442

GREEN v. HOUSTON ELECTRIC CO.

Court of Civil Appeals of Texas.

October 13, 1905.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by Anna Green against the Houston Electric Company. From a judgment for defendant, plaintiff appeals. Reversed.

Lovejoy & Malevinsky and Guynes & Colgin, for appellant. Baker, Botts, Parker & Garwood, for appellee.

REESE, J.

Appellant sues to recover of appellee damages for injuries alleged to have been received by her while getting on one of appellee's cars. Appellee owns and operates a line of street railway in the city of Houston, and it is alleged in the petition that while appellant was in the act of getting on one of its cars, and before she had gotten entirely in the car, it was by the person in charge negligently started, with a violent jerk and without any warning to appellant, the effect of which was to throw her violently against the end of the seat and to inflict upon her injuries, for which she claims damages in the sum of $3,500. Defendant answered by general demurrer and general denial. There was a verdict and judgment for the defendant. Her motion for a new trial having been overruled, she appeals.

Appellant in her first and second assignments of error complains of the charge of the court in its definition of negligence as "the want or failure to use ordinary care; that is, that degree of care which an ordinarily prudent person would use under like circumstances, to avoid injury or accident." The evidence shows that, if appellant was injured at all, she was at the time a passenger on the car of appellee, a common carrier, and this is the allegation of her petition. The charge is erroneous in defining the degree of care required of appellee, which is, in substance, "such a high degree of foresight as to possible dangers, and such a high degree of prudence in guarding against them, as would be used by very cautious, prudent, and competent persons under similar circumstances." Railway v. Halloren, 53 Tex. 53, 37 Am. Rep. 744; I. & G. N. Ry. Co. v. Welch, 86 Tex. 203, 24 S. W. 390, 40 Am. St. Rep. 829.

The jury were instructed, in paragraph 6 of the charge, that appellant's right to recover was dependent upon their belief that she was a sound, healthy, and active woman prior to the injury. This placed upon appellee the burden of proving, as an essential element of her right to recover any damages whatever, the descriptive allegations of her petition that she was, prior to the alleged injuries, a sound, healthy, and active woman. We think this charge was error. G., C. & S. F. Ry. Co. v. Brown, 16 Tex. Civ. App. 104, 40 S. W. 608.

The jury was further instructed that the plaintiff would not be entitled to recover, if they believed that her physical condition at the time of the trial was not the result of the injury alleged, or if they believed that it arose from other causes prior to the injury. While it is true that there was evidence which tended to show that appellant's general physical condition at the time of the trial was no worse than it had been for several years, and previous to the date of the alleged injury, and that, instead of having been, previous to such injury, a stout, healthy, and active woman, as alleged by her, she was weak, sickly, and not capable of physical labor, still, if this testimony had been true, and if her general physical condition at the time of the trial had been no worse than it was before the alleged injury, it would not have precluded her from recovering for such physical and mental suffering, incapacity to attend to her affairs, etc., as alleged, if any, as were immediately consequent upon such injury and the direct result thereof, and, in addition, such expenses, if any, as were incurred for medical attendance on account thereof, if in fact she had been injured as alleged in her petition and testified to by herself and other witnesses. If the jury had believed that the accident occurred as testified to by appellant and Mrs. Finch, and that she sustained damages and incurred expenses immediately consequent thereupon and the direct result thereof, such matters, under the instruction referred to, could not have been considered by the jury, if they further believed that her general physical condition was no worse at the time of the trial than previous to the injury. This is not the law, and the charge referred to was error.

In each of these instructions the right to recover for whatever damages on account of mental and physical suffering, if any, appellant may have sustained immediately consequent upon the accident and injury complained of, and not affecting her general physical condition at the time of the trial, is denied. These objections to the charge of the court are presented by sufficient assignments of error and must be sustained.

The eighth paragraph of the court's charge is as follows, and is assigned as error: "In this connection you are further instructed that, as plaintiff alleges that her injuries and present condition were produced and caused by the negligence of defendant's servants in charge of the car, she is required to prove this allegation by a preponderance of the evidence; and if you believe that the accident occurred at the time and place alleged, but believe that before that time the plaintiff was in a diseased and nervous condition, whereby her system was already permanently or seriously injured, and that her present physical condition is only a continuation or aggravation of the already existing condition, you will find for defendant." Appellee insists that this instruction announces a correct rule of law. His contention is...