Metropolitan St. Ry. Co. v. Wishert
| Decision Date | 18 October 1905 |
| Citation | 89 S.W. 460 |
| Parties | METROPOLITAN ST. RY. CO. v. WISHERT. |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; T. F. Nash, Judge.
Action by L. A. Wishert against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.
E. B. Perkins, D. E. Upthegrove, and Finley, Knight & Harris, for appellant. Gano, Gano & Gano, for appellee.
This is a personal injury suit, resulting in a verdict and judgment for the plaintiff for $7,000, and the defendant has appealed.
The first assignment of error is addressed to the action of the court in excluding certain testimony, offered, it seems, for the purpose of impeaching Mrs. Shide, who had testified for the plaintiff. The bill of exceptions merely states in general terms that the plaintiff objected to the testimony, but does not state the ground upon which the objection was made, nor quote the language used in making it. Therefore the question is not presented in a proper manner. Ry. Co. v. Jarrell, 86 S. W. 632, 12 Tex. Ct. Rep. 281. However, we are of opinion that the testimony was subject to certain objections which may have been urged against it.
We sustain the second assignment of error, which complains of the court's charge in reference to the measure of damages, because it authorized a recovery for doctors' bills. The trial court had sustained a special exception to so much of the plaintiff's petition as sought such recovery; and, while there was testimony tending to show certain charges by physicians, it was not shown that such charges were reasonable. Under such circumstances, it requires no citation of authorities to show that it was error for the charge to authorize a recovery for medical attention. Nor is the record in such condition as that the error complained of can be cured by a remittitur.
The third assignment complains of the court's charge on the burden of proof, because it stated that the burden rested upon the plaintiff to prove certain facts, but did not recite all the facts which it was necessary for him to prove in order to recover. This criticism relates to an omission which, perhaps, the defendant should have sought to remedy by a requested instruction supplying the omission. However, upon another trial, if the court charges on the burden of proof, we suggest that the charge be so framed as to place the burden upon the plaintiff to prove all the facts necessary to entitle him to recover.
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