Panhandle & S. F. Ry. Co. v. Reed

• Decision Date: 14 May 1925
• Docket Number: (No. 184.)
• Citation: 273 S.W. 611
• Parties: PANHANDLE & S. F. RY. CO. v. REED.
• Court: Texas Court of Appeals

Page 611

273 S.W. 611

PANHANDLE & S. F. RY. CO. v. REED.

(No. 184.)

Court of Civil Appeals of Texas. Waco.

May 14, 1925.

Rehearing Denied June 11, 1925.

Appeal from District Court, McLennan County; H. M. Richey, Judge.

Action by E. B. Reed against the Panhandle & Santa Fé Railway Company and the Gulf, Colorado & Santa Fé Railway Company. Judgment against plaintiff as to second named defendant, and in his favor as to first named defendant, which appeals. Affirmed as to second named defendant, and reversed and remanded as to first named defendant.

Terry, Cavin & Mills and C. L. Barrow, all of Galveston, and Nat Harris, of Waco, for appellant.

Johnston & Hughes and Weatherby & Rogers, all of Waco, for appellee.

BARCUS, J.

This suit was filed by appellee, seeking to recover damages against appellant and the Gulf, Colorado & Santa Fé Railway Company, which he claimed he suffered by an injury which he received at Slaton, Tex., while alighting from a passenger train of appellant. He alleged that in alighting from the train he stepped on the footstool, which turned and threw him on the brick platform, and as a result his kneecap was broken. Appellee alleged that he was about 50 years of age, a stout, robust, healthy man, and was engaged in running a road carnival show, which employed 150 men and required 13 cars to transport, and at the time of the injury he was on his way to Plainview, where his show was in operation. He alleged that since his injury he had suffered great pain, and that he was permanently injured; that he had lost 3 months' time from his business, and had been so handicapped, by reason of the injury, as to cause him great financial losses in his business; that he would continue to suffer said handicap by reason of said injury, and would continue to suffer pain the remainder of his life; that prior to his injuries he earned an average of $5,000 to $10,000 per year, but since said injuries he had not been able to properly manage his shows, and had not earned over an average of $1,000 per year. He prayed for $20,000 damages. Appellant answered by general demurrer, some special exceptions, general denial, and contributory negligence. The trial court sustained a general demurrer to appellee's alleged cause of action against the Gulf, Colorado & Santa Fe Railway Company, to which there is no complaint, and submitted the issues between appellant and appellee to the jury on a general charge. On the jury's verdict, the court rendered judgment for appellee against appellant for $9,000.

The trial court instructed the jury that if they found for the plaintiff, in ascertaining the amount of his damages —

"You may take into consideration any loss of time, if any, and any physical pain and suffering, if any, you may believe from the evidence plaintiff has undergone or sustained in the past on account of his injuries, if any, and, if you believe from the evidence that he has not at this time recovered from his injuries, if any, you may also take into consideration any physical pain or suffering, if any, and any diminished capacity to earn a livelihood, if any, that you may believe from the evidence he will undergo or sustain in the future."

Appellant objected to the above charge because there was no evidence to support a finding as to the value of the time lost, and because there was no evidence by which the jury could reach a just verdict with reference thereto, and assigns error to the trial court's overruling said exception. We sustain this assignment. Before a party is entitled to recover for time lost, occasioned by an injury, it is necessary for him to both allege facts and offer testimony in support thereof sufficient for the jury to arrive at a verdict. Appellee alleged that he had lost 3 months' time, and that his earning capacity had been reduced. We have carefully examined the statement of facts, and there is nothing contained therein which in any way gives any facts from which a jury could draw an intelligent conclusion as to the value of the time which appellee claimed he lost, or the extent to which his earning capacity had been reduced.

The appellee's testimony is that he was running a carnival show; that he remained with same; that for the first 3 weeks after the injury he walked on crutches, and then for the first time discovered his kneecap was actually broken; that the doctor then placed his leg in plaster paris, where it was kept for 3 or 4 weeks, and during said time he was confined to his bed in his show car; that thereafter he walked with a cane for approximately a year, and at the time of trial, which was about 3 years after...