Missouri, K. & T. Ry. Co. of Texas v. Smith

• Decision Date: 13 March 1907
• Citation: 101 S.W. 453
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. SMITH.
• Court: Texas Court of Appeals

101 S.W. 453

MISSOURI, K. & T. RY. CO. OF TEXAS v. SMITH.

Court of Civil Appeals of Texas.

March 13, 1907.

Rehearing Denied April 17, 1907.

Appeal from District Court, Bell County; John M. Furman, Judge.

Action by Eugene Smith against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

T. S. Miller, Geo. W. Tyler, and Wallace Tyler, for appellant. J. B. McMahon and A. L. Curtis, for appellee.

FISHER, C. J.

This is a suit by appellee, Smith, against the railway company for damages arising from personal injuries alleged to have been sustained while he was in the service of the appellant and in the performance of his duties in unloading a car stationed on a side track at Temple. The grounds of negligence alleged are that the servants of the railway company, in operating a train of cars, negligently backed the same in and upon the track where the car was stationed in which the plaintiff was at work, and negligently caused a collision with that car, by which the same was struck with great force, knocking the plaintiff down upon the floor of the car, thereby inflicting the injuries described in his petition. Defendant answered by a general denial, that the train was carefully and skillfully handled, that the plaintiff knew the dangers incident to the work he was then engaged in doing and assumed the risk thereof, and was guilty of contributory negligence in remaining in the car under the circumstances. Verdict and judgment were in plaintiff's favor for $2,750.

In the trial of the case the appellant requested the following instruction, which was refused: "If the jury believe from the evidence that plaintiff's bladder is affected in any way, but if they further believe from the evidence that such bladder trouble, if any, is not the direct and proximate result of any injuries he may have received in the car, as alleged by him, but is due to an improper use of a catheter, or to any other cause not connected with the alleged accident of October 12, 1904, then he is not entitled to any damages against defendant on account of such bladder trouble, if any, and you will not consider the said bladder trouble, if any, in estimating any damages in this case." The court in its charge, in a general way, instructed the jury that the plaintiff could only recover for those injuries, if any, that proximately resulted from the alleged negligence. The plaintiff introduced evidence upon which the jury could have based the conclusion that his bladder was affected, and that there was possibly some injury to the urethal canal. There was evidence showing that under direction of a physician the plaintiff's wife had used a catheter by inserting it up the urethal canal, and she testifies that in the performance of this operation the plaintiff at times complained of pain. There is medical expert evidence in the record that would have authorized the jury to consider the question whether or not the insertion of the catheter and the improper use of the same might have been the cause of the injury to the uretha and bladder. The charge requested and refused affirmatively presented this question to the jury, and we are of the opinion that the court...