Knauff v. San Antonio Traction Co.

• Decision Date: 19 November 1902
• Citation: 70 S.W. 1011
• Parties: KNAUFF v. SAN ANTONIO TRACTION CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

70 S.W. 1011

KNAUFF v. SAN ANTONIO TRACTION CO.^*

Court of Civil Appeals of Texas.

November 19, 1902.

Error from district court, Bexar county; J. L. Camp, Judge.

Action by H. J. Knauff against the San Antonio Traction Company. From a judgment in favor of defendant, plaintiff brings error. Reversed.

Wm. Aubrey, for plaintiff in error. Houston Bros. and R. J. Boyle, for defendant in error.

FLY, J.

This suit was instituted by appellant against appellee, as successor in liability to the San Antonio Street Railway Company, to recover damages resulting from injuries sustained by his wife through the negligence of the San Antonio Street Railway Company. Trial by jury resulted in a verdict and judgment for appellee. In the petition, among other items of damage, it was alleged that appellant had been deprived of his wife's services through the injury inflicted by the negligence of appellee. Upon the measure of damages the court gave the following charge: "Should you find for plaintiff under the instructions herein given you, then in estimating the damages, if any, you award the plaintiff, you may take into consideration the mental and physical pain and suffering, if any, endured by plaintiff's wife by reason of her injury, if any, and allow plaintiff such a sum of money as you may believe from the evidence will be a fair and reasonable compensation for such mental and physical pain and suffering, if any, by reason of such injury, if any." Appellant complains of the charge on the ground that the services of appellant's wife were not included in the measure of damages. Undoubtedly, the charge, so far as it goes, is correct, and the attack upon it must be on the ground of an error of omission. No special charge was requested that would supply the omission, and through an unbroken line of decisions from Dallam's Reports to the present it has been uniformly held that advantage cannot be taken on appeal of an error of omission in the charge of the trial court, unless a special charge, intended to supply the omission, has been requested and refused. Harlan v. Baker, Dallam, Dig. 578; Beazley v. Denson, 40 Tex. 416; Railway Co. v. Eberheart, 91 Tex. 321, 43 S. W. 510. In the case of Terry v. Railway Co., 14 Tex. Civ. App. 451, 37 S. W. 234, the court omitted an element of damages pleaded, and the court held: "If the court had given an incorrect charge on the measure of damages as to the items submitted, this would have been error, and a special charge seeking to correct it would not have been essential in order to raise the objection to the charge. But when the main charge fails to include all the items of damages claimed, this is an omission which should be corrected by a special charge seeking that end."

The ground of negligence alleged in the petition is as follows: "That heretofore, to wit, the 15th day of November, 1899, plaintiff, A. B. Knauff, in the city of San Antonio, in said county and state, while as a passenger in the act of entering and seating herself in a car of the San Antonio Street Railway Company running on North Flores street, in said city, was, by the negligence of said San Antonio Street Railway Company, its agents and employés, seriously and permanently injured, for this: that while in said act said San Antonio Street Railway Company, its agents and employés in charge of said car, without any warning to said A. B. Knauff, suddenly caused said car to start into rapid motion, whereby the leg of said A. B. Knauff, at or above the ankle thereof, was strained, wrenched, and otherwise seriously and permanently injured." Mrs. Knauff swore that she signaled a car to stop, and when it did so she tried to enter it, and as she was ascending, and had one foot on the step and one in the car, the car started with a sudden jerk, and displaced her left ankle. Under that testimony the court charged as...