Missouri Pac. Ry. Co. v. Mitchell

• Decision Date: 30 November 1888
• Citation: 10 S.W. 411
• Parties: MISSOURI PAC. RY. CO. <I>v.</I> MITCHELL.
• Court: Texas Supreme Court

10 S.W. 411

MISSOURI PAC. RY. CO.v.

MITCHELL.

Supreme Court of Texas.

November 30, 1888.

Appeal from district court, Smith county; FELIX J. McCORD, Judge.

J. R. Burnett, for appellant. H. Chilton, for appellee.

STAYTON, C. J.

Appellee brought this action to recover damages, actual and exemplary, for an injury alleged to have been received by his wife, who was a passenger on appellant's train. The car in which the wife was, was derailed, and it is alleged and admitted that the evidence is sufficient to show that this was brought about by such a condition of the railroad as would render appellant responsible for the actual damages sustained. The petition set out the injuries to appellee's wife as follows: "That by reason of the fall and derailment the wife of plaintiff has been severely injured and disfigured for life; that she received heavy and serious blows and bruises on both her shoulders, and was wounded in 5 or more places on her person; that her lower limbs were bruised and wrenched, and her nervous system shocked and permanently impaired; that she received a deep and painful gash upon the face and chin, more than an inch long; that in consequence she has ever since said accident been unable to labor or attend to her household duties, and that said disability will probably continue for many years, perhaps for life; that the gash on her face is incurable, and will deform and disfigure her for life." The petition further alleges that the wife suffered great physical and mental pain as the result of the injuries to her person. A physician was asked what dangers the wife had undergone on account of her injuries, and among other things he stated that she had been threatened with miscarriage. This evidence was objected to, on the ground that there was no pleading to authorize the admission of such evidence, but the objection was overruled. Another physician was asked what was the wife's condition as to pregnancy, to which an objection was made on the same ground, and this the court sustained. After these things occurred, counsel for appellee announced, in the presence of the jury, that he would withdraw the question and answer, and consent that the evidence be excluded, and gave as a reason for this that he did not wish to give any ground on which the judgment might be reversed. The court orally instructed the jury not to consider the evidence. It appears that other questions were propounded to witnesses during the trial, and afterwards withdrawn, counsel for appellee stating at the several times, in the presence of the jury, that they were withdrawn for the reason before stated, and not because he believed the evidence sought inadmissible. It is urged that it was error to admit the evidence afterwards excluded, and that this was not remedied by its exclusion. We do not see that the evidence was not properly admitted. The nature of the injuries to the person of the wife were stated, and we see no reason why their effect upon her in any way might not have been proved under the averments made.

It is further urged that the repeated statement by counsel for appellee of the reasons which induced him to withdraw questions was calculated to prejudice the jury against appellant, and to deprive it of a fair and impartial trial. We do not see that the propounding of questions, and subsequently withdrawing them, even with the statement of the reasons which influenced the withdrawal, could have operated to the prejudice of appellant, more than would the asking of an improper question, and the action of the court...