Otis Elevator Co. v. Bond
| Citation | 391 S.W.2d 519 |
| Decision Date | 14 May 1965 |
| Docket Number | No. 16242,16242 |
| Parties | OTIS ELEVATOR COMPANY et al., Appellants, v. Doris L. BOND, Appellee. |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Bailey & Williams, James A. Williams, Strasburger, Price, Kelton, Miller & Martin, Hobert Price, Dallas, for appellants.
Bonney & Wade and Minor Morgan, Dallas, for appellee.
For the facts of this case see our opinion in Otis Elevator Co. v. Bond, Tex.Civ.App., 373 S.W.2d 518, and the opinion of the Supreme Court of Texas in Bond v. Otis Elevator Co., 1965, 388 S.W.2d 681, 8 Sup.Ct. Journal 319.
In reversing our judgment the Supreme Court has held that the evidence shows conclusively that the elevator in question was under joint control of Adolphus Tower and Otis Elevator Company, and that the mishap involved here was one 'which does not ordinarily occur without negligence, and is such an accident, that from the mere showing that it happened, negligence of those in control may be inferred,' thus making the res ipsa loquitur doctrine fully applicable; that the jury finding that Otis Elevator Company negligently failed to properly maintain the elevator is a general finding of negligence, and not a specific finding, as we had thought. Therefore, we were in error in sustaining Otis' points asserting lack of pleadings and no evidence to support this finding. The case had been remanded to us for reconsideration of our holding that there was insufficient evidence to support the same.
In the light of the Supreme Court's opinion, we now hold that, since our decision in this respect was on a theory now found to have been erroneous, the points of error asserting that the evidence was insufficient to support a finding of negligence, were improperly sustained by us and they are now overruled.
The court has also remanded the case to us for determination of the question of excessiveness of the damages found by the jury. These points were not passed upon by us in our former opinion. The evidence on these points is summarized briefly as follows:
Doris Bond, the appellee, testified that when the elevator stopped suddenly and began bouncing up and down she fell to the floor and injured her left ankle, causing pain and swelling of the ankle. She was treated by Dr. Halley, who operated on her ankle, placing a 'pin' in it. She was in Baylor Hospital twenty-nine days; her left leg was put in a long cast which was replaced after six or seven weeks with a shorter one, and the shorter one was removed about April 1, 1960. She said that during this period she could get around on crutches. The short cast was replaced with an elastic bandage and in the first few months she was able to be up for only short periods of time. She could force herself to stay up longer, but she was in considerable pain and after being up for a very short time she had a very bad and noticeable limp, 'and drug that leg and foot quite a bit.' She gradually began to be able to stand a little more and through the two and one-half years since the accident she has regained quite a bit of use of the foot and leg but still limps when she has been up 'a length of time,' and is not able to stand very long at a time. She said she still felt pain and discomfort in the ankle, it being most noticeable when she has been standing a little while and is also noticeable when she puts on 'heels'. She is always conscious of the discomfort with ascending or descending steps. At the time of the trial, she said she was not able to work long hours on her feet; that the pain in the ankle extends up the left side, in her knee, her hip and into her back. She also said that she was extremely nervous, had a great deal of tension and strain and is unable to go above the fourth or fifth floor in elevators and is still very badly affected by any kind of moving machinery, that frequently if she is in an automobile in heavy traffic she suffers from nausea and cold sweating. She also has recurrent nightmares involving the accident, and is unable to do any kind of work that involves any kind of pressure, and doesn't feel that she could take any responsibility 'on a job situation.'
About two weeks after she got out of the last cast, and was able to get around with the bandage pretty good, she went to work for another company and in about four months she realized she was not able to work full time and arranged to work half time, which she did for about two months. Thereafter she worked for a country club for about three months, after which time she tried to get temporary employment. She sought the aid of a psychiatrist. She worked from September 1, 1961 to December 1, 1961 for a new company being formed, but which did not stay in business long. In 1962 she started working on a part time basis, instructing ladies in a coin-operated dry cleaning establishment. She said her earnings in 1960 were $2,332.50; and in 1961 they were $1,772.50; and in the first half of 1962 were $750; and that her medical expenses were $2,285.81. At the time of the accident she was employed as manager of an employment service office at a salary of $390 a month.
Dr. Ruth Jackson, an orthopedic surgeon, testified that she first saw appellee on November 9, 1961, examined her and took x-ray pictures; that there was a full range of ankle motion and a full range of toe motion, some instability of the ankle joint from side to side, no swelling of the ankle joint at that time, but she noticed a difference in the color of the two legs, indicating a disturbance of the blood supply to the left leg. She found the left knee to be stable but she could feel a crepitus (a creaking or crackling sound in the knee joint). The x-rays showed a metal screw in the left ankle and that the fractured bone had healed.
She next saw Miss Bond on November 13, 1961, again on March 28, 1962 and...
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American Bank of Waco v. Waco Airmotive, Inc.
...by the jury. See Otis Elevator Company v. Bond, 373 S.W.2d 518, 523 (Tex.Civ.App.--Dallas 1963), remanded, 388 S.W.2d 681, on remand, 391 S.W.2d 519. EVIDENTIARY In points twenty-seven through thirty, the bank complains that the court erred in refusing to allow witnesses to testify and in r......