Houston Electric Co. v. McDade

• Decision Date: 19 February 1904
• Citation: Houston Electric Co. v. McDade, 79 S.W. 100, 34 Tex. Civ. App. 497 (Tex. App. 1904)
• Parties: HOUSTON ELECTRIC CO. v. McDADE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

79 S.W. 100

HOUSTON ELECTRIC CO. v. McDADE.^*

Court of Civil Appeals of Texas.

February 19, 1904.

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

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

Baker, Botts, Baker & Lovett, for appellant. Chas. O. Guynes, Edgar Watkins, and Frank C. Jones, for appellee.

PLEASANTS, J.

Appellee brought this suit to recover damages for personal injuries alleged to have been caused by the negligence of the employés of appellant in the operation of one of appellant's street cars in the city of Houston. The injuries complained of as the result of defendant's negligence are alleged in the petition as follows: "That plaintiff was thrown with great force and violence to the ground, thereby seriously injuring and wrenching plaintiff's spine, dislocating her right shoulder, and bruising and injuring her right arm, injuring her right hip and right leg, and, in fact, greatly injuring and wounding plaintiff's entire body, and injuring plaintiff internally; that because and in consequence of said injuries, sustained as aforesaid, plaintiff has ever since said day suffered intense bodily pain and mental anguish, and, because of said injuries, plaintiff has ever since said day been, and is now, totally incapacitated to attend to any of her work, or to do and perform any kind of labor; that plaintiff will not recover from said wounds and injuries; that she is permanently injured; * * * that, on account of said injuries, plaintiff will never again be able to do any work or to earn any money; * * * that since said injuries plaintiff has suffered intense physical pain and mental anguish, as a result thereof, and will continue to suffer intense physical pain and mental anguish so long as she lives." The prayer of the petition is for the recovery of damages in the sum of $5,465. The defendant answered by general demurrer, general denial, and a plea of contributory negligence on the part of plaintiff in leaving the car while same was in motion. The trial in the court below resulted in verdict and judgment in favor of plaintiff for $925. The sufficiency of the evidence to sustain the verdict is not questioned by the appellant. The only issues presented on this appeal are: First, the admissibility, under the allegation of the petition, of evidence introduced by plaintiff showing that the most serious and only permanent injury inflicted upon her by the alleged negligent act of the appellant was the displacement of her womb; and, second, the admissibility of the testimony of a physician who testified for plaintiff that the injury to plaintiff's womb would, in his opinion, reduce her life expectancy one-half. Defendant in the court below objected to all of the testimony introduced by plaintiff showing injury to plaintiff's womb, on the ground that "there was no allegation in the petition of such injury, and because plaintiff's petition contained specific allegations of injuries to certain portions of the body, and did not contain any specific allegations of injury to the womb." We think the ruling of the trial court in refusing to sustain these objections to the testimony was correct. The allegation of the petition that plaintiff was injured internally was sufficient to admit proof of injury to her womb, or to any other of her internal organs. While no proof of that fact was necessary, the evidence shows that the womb is an internal organ of the human body, and that the displacement of the womb is an internal injury. If appellant desired to be more fully informed by the petition as to what internal injuries she claimed to have received, it should have addressed a special exception to the petition, and required plaintiff to set out the injuries complained of more definitely; and, having failed to do this, it ought not to complain of evidence which establishes the general allegation of the petition that plaintiff was injured internally. Ry. Co. v. Edling (Tex. Civ. App.) 45 S. W. 406; Ry. Co. v. McMannewitz, 70 Tex. 73, 8 S. W. 66; Ry. Co. v. Bibolet (Tex. Civ. App.) 57 S. W. 974; Ry. Co. v. Kelton (Tex. Civ. App.) 66 S. W. 887; Ry. Co. v. Mayfield (Tex. Civ. App.) 68 S. W. 812; Ry. Co. v. Hawk (Tex. Civ. App.) 69 S. W. 1039; Ry. Co. v. Bell (Tex. Civ. App.) 58 S. W. 147; Ry. Co. v. Preston, 74 Tex. 183, 11 S. W. 1108; Powers v....