Northern Texas Traction Co. v. Brannon, 12830.

• Decision Date: 22 April 1933
• Docket Number: No. 12830.,12830.
• Citation: 61 S.W.2d 156
• Parties: NORTHERN TEXAS TRACTION CO. v. BRANNON.
• Court: Texas Court of Appeals

61 S.W.2d 156

NORTHERN TEXAS TRACTION CO. v. BRANNON.

No. 12830.

Court of Civil Appeals of Texas, Fort Worth.

April 22, 1933.

Appeal from District Court, Tarrant County; H. S. Lattimore, Judge.

Action by R. S. Brannon against the Northern Texas Traction Company. From a judgment in favor of plaintiff, defendant appeals.

Reversed and remanded.

Cantey, Hanger & McMahon and W. D. Smith, all of Fort Worth, and C. W. Trueheart, of Longview, for appellant.

C. C. Peters, Jr., and Allen Crowley, both of Fort Worth, for appellee.

CONNER, Chief Justice.

This appeal is from a judgment in favor of appellee for the sum of $750 as damages for personal injuries received by him while riding on one of appellant's street cars. In substance, the facts show that appellee was a passenger on a car going in an easterly direction; he was standing near the front entrance on the left-hand side with his right hand holding to an iron post which extended from the bottom to the top of the car. A woman passenger had given the signal to stop so that she might alight therefrom when, appellee alleged, the motorman negligently and with great and unusual force applied the compressed air brakes so as to thereby suddenly almost stop the car, then running at an unlawful rate of speed, with the result that the woman passenger who had approached and was standing at the side of appellee was suddenly and with force thrown against his extended arm, which wrenched and fractured it near the wrist, causing mental and physical pain and impairing his earning capacity.

Following definitions and special issues, the court gave to the jury the following charge:

"What sum, if paid now in cash, will reasonably and fairly compensate the plaintiff for the injuries, if any, sustained by him in this accident? Answer yes or no.

"In answering this question you may consider physical pain and suffering, if any the plaintiff has sustained, and such as you believe he will reasonably and probably suffer in the future, and you will consider mental pain and suffering if any the plaintiff has sustained; and you may consider loss of earnings, if any the plaintiff has sustained, and such as you believe he will reasonably and probably suffer in the future, if any."

Appellant duly excepted to this charge, on the ground that thereby the jury was permitted "to consider loss of earnings which the plaintiff had sustained when there was no sufficient testimony showing what earnings the plaintiff has lost or what his earnings during the time he was disabled on account of his arm would be."

Appellee's testimony supported findings that he was injured as alleged; that he had lost time and suffered such impairment of his hand and wrist as to incapacitate him in a considerable degree from performing his customary labor, which was that of digging ditches and shoveling dirt while an employee of the city. There is, however, an entire absence of testimony showing his wages previous or subsequent to his injury, and we therefore think that the assignment of error calling attention to the matter must be sustained and the judgment reversed.

In 13 Texas Jurisprudence, § 227, p. 391, it is said: "But where the injuries suffered are shown to be of such a nature as fairly to justify the conclusion that the plaintiff's capacity to earn money in any vocation has been lessened, the right to a recovery of such amount as damages should be held to have been sufficiently established, and the plaintiff should be held to be entitled to recover at least nominal damages. Where no evidence was offered to show the sum that the plaintiff earned before the injuries were received and the amount that he could earn afterwards, it was held that diminished capacity to do the work which he was accustomed to do, rather than diminished capacity to...