Gulf, C. & S. F. Ry. Co. v. Bell

• Citation: 58 S.W. 614
• Court: Court of Appeals of Texas
• Decision Date: 10 October 1900
• Parties: GULF, C. & S. F. RY. CO. v. BELL.

58 S.W. 614

GULF, C. & S. F. RY. CO. v. BELL.

Court of Civil Appeals of Texas.

October 10, 1900.

Appeal from district court, Coleman county; J. O. Woodward, Judge.

Action by W. D. Bell against the Gulf, Colorado & Santa Fé Railway Company for injuries received while a passenger on defendant's train. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Sims & Snodgrass, J. W. Terry, and Chas. K. Lee, for appellant. Cockrell & Hardwicke, J. K. Baker, and Theodore Mack, for appellee.

COLLARD, J.

This suit was brought by W. D. Bell against the Gulf, Colorado & Santa Fé Railway Company to recover damages for injuries received while a passenger on appellant's passenger train going into Coleman from Brownwood on the night of the 15th day of May, 1895. The trial resulted in a verdict and judgment for plaintiff, from which defendant has appealed. We have considered and overruled the motion of appellee to strike out the statement of facts.

Findings of Fact.

We find the facts as follows: Plaintiff was a passenger on defendant's passenger train from Brownwood to Coleman. There had been a severe storm of wind and rain at Coleman, that had driven a train of stock cars standing on a switch at Coleman back on the main track, so that the end of the rear car of the stock train projected over on the main track, making an obstruction to passing trains. The brakes had been turned on the freight train to keep it in position on the switch, but, the track inclining with the direction of the wind, the cars were moved as stated. An employé of the company had discovered the position of the stock cars, and, by direction of the company's agent, immediately after the discovery went out with a lantern to flag the passenger train, then in view, coming in from Brownwood after the storm; plaintiff, being a passenger thereon, riding in the chair car. The employé sent out to flag the passenger train proceeded about 450 yards from the depot, passing the obstructing cars, and was opposite his home when his lantern went out, so that he could not give the signal of danger. He hurried back to the depot and fixed his lantern, and started back to flag the train; and when he arrived at the switch his lantern went out again, and he had not time to relight it. The wind was then blowing very little. He did not know what caused his lantern to go out. He "commenced hollering," and ran down to meet the passenger train, saw he could not stop the train, and got off the track. The passenger train ran into the stock car. Plaintiff was asleep, and just before the collision the conductor woke him up, saying, "We are at Coleman." Plaintiff raised up, and was standing in the aisle at the time of the collision, and was thrown against the smoking compartment in the front end of the chair car. When he got up he was standing in the aisle, some eight or ten feet from the smoking compartment, at the time of the collision.

We incorporate the following statements of witnesses as facts proved on the trial, and find that the facts stated are true; and we also find that the physical conditions of plaintiff, stated, were caused by the collision of the cars, which collision was the result of negligence on the part of defendant company:

Speaking of the collision, plaintiff testified: "I think it jarred the car I was in considerably, threw several persons down, and it threw me against the wall of that room [the smoking compartment]. I struck the wall on the left side of my head and left side. My head struck the wall, and my shoulder, and I reckon my hand and arm; and my leg struck something. I suppose the bench that was in front. It was my left leg. After that I went to the hotel in Coleman that night. The blow seemed to deaden my leg. It mashed it right there on my shin. It seemed like you could lay your finger in the bruise. I had my watch in my vest pocket at the time, and it mashed the case and broke the crystal and hands. Prior to that time I was in good health,— lived a pretty active life. Was never sick but once in my life, that I remember of; that is to say, sick. Of course, I have had bad colds, but was never sick, except with the measles, to go to bed. * * * Striking that compartment seemed to numb me at the time, and there was soreness in my head and shoulder and leg. My leg was the worst first, it seemed,—the next day,—and kept getting worse. It seemed to be two or three weeks before my head got to feeling bad. It was aching and throbbing all the time, and just kept getting worse until it ran, and I had it operated on. I stayed at Coleman the following day, and went to Ft. Worth on the 17th of May,—the second day after I was hurt. When I got to Ft. Worth, I went to see Dr. McCoy. He treated me. He ripped my drawers off my leg, and bound it with a bandage and iodoform. He did that for about 12 or 13 days once a day, and I believe twice some days. After that, went home to Abilene. * * * Stayed at home eight, ten, or twelve, or maybe fifteen, days; then went back to Ft. Worth to have my head treated. My head was all swollen up and hurting. Swollen up from the center of my head down to my shoulder,—all the side of my face. I went to Dr. McCoy the first man after I got to Ft. Worth. He did not treat me or do anything for my head. He said he was not a specialist in that business, and said he would send me to Dr. Gray, who was the best specialist in Ft. Worth. Dr. Gray treated me about a month. He examined by head, and took his instruments and examined through the ear, and doctored me, and operated on it in some way. I don't know what he did, but he worked every day while I was there. After that I went back home, and stayed at home a good while before I went back to Gray. It rose again after that. I think I went to Gray two or three times, and maybe four. I was sick for two years, off and on, after I returned from Gray. Was mostly in the house. A good share of the time I was not able to be up. The trouble seemed to start from my head, and the muscles of my shoulders and the side of my back would swell up, and I would have to bathe them, and use cupping glasses, and such things as that. * * * My head swelled up frequently. I don't know how many attacks of the head I have had; a good many; a dozen, I expect, maybe more. I have never since the accident felt stout and well and hearty, like I used to be. Have never been able to do the work that I did. I cannot do any hard work at all. It always lays me up,—hurts my back. I cannot ride horseback, —cannot jar. I cannot go out in the heat of the sun at all. It causes my head to pain me, and throws me into a fever. * * * There was never anything the matter with my ear before this accident. Now I cannot hear out of my left ear scarcely at all. I can hear a noise, but cannot distinguish sounds, or anything like that. I do not believe, really, I have ever been free from hurting since I received this injury. I have hurt more at some time than at others. A great many times I have suffered a good deal,—maybe for a week or two weeks, and maybe longer, and then I would get over it; but, to be free from hurt, I do not believe I have ever been since I was hurt. * * * Horseback riding hurts me in the spine,— right on the left hip. It hurts my head and under my left shoulder. As far as my walking, for a long time I could not walk. I would hurt up my leg. It was weak for a long time. It still hurts me some now, but not all the time."

J. N. Furgeson testified as follows, and we find his statements are true: "My name is J. N. Furgeson, age 41; my occupation, a cattle man. My residence is Abilene, Texas, where I have resided for the past four years. I am acquainted with the plaintiff, W. D. Bell. I have known him some ten or twelve years in Taylor and adjoining counties. I have known him right well during these years; have traded with him; seen him work around with cattle; have talked with him and been thrown with him off and on all these years. I did observe his condition. Prior to his accident on the railroad, or alleged accident, he was a stout, strong, healthy, and vigorous man. He moved about like a man in perfect health, and, if there was anything at all the matter with him in any way, there was nothing in sight to show it or indicate it. Ever since that accident he has every appearance of a man in bad physical condition; moves about in a slow, sluggish way. He uses a stick, and was limping about. Before his accident he rode horseback a great deal. I cannot recall ever having seen him on horseback since the time of this accident. I noticed after his accident that his hearing was affected, and he had cotton in his ears. Prior to his accident he was almost constantly on the go, trading in cattle, but since the time of that accident he has not done anything. It is possible the plaintiff could have been affected with ear trouble prior to May, 1895, and the same not known to me, but it would have to be not very serious. I never examined him myself, nor saw a doctor examine him, prior to May, 1895. Prior to his accident I made no further inquiry into his health or condition than to make the usual and customary inquiry as to how he felt, or how he was getting along, or how he did. Since said accident I have made it a point to inquire into his condition whenever opportunity occurred. I make the same answer as to possibility of plaintiff having had catarrh of the head or nose prior to May, 1895, that I made to the possibility of his having ear trouble. The only way I would have of not knowing that he had or did not have a disease was or would be by seeing him and noticing him, and noticing his motions and hearing him complain, or notice that he did not complain, and to observe how he got about and did generally. This is about all I can say as to this. I cannot tell, without in some manner or some way making an examination, that he has or has not any disease. I could not tell by simply seeing a person going around, or...