Pecos & N. T. Ry. Co. v. Coffman

• Decision Date: 24 May 1913
• Citation: 160 S.W. 145
• Parties: PECOS & N. T. RY. CO. v. COFFMAN.
• Court: Texas Court of Appeals

160 S.W. 145

PECOS & N. T. RY. CO. v. COFFMAN.

Court of Civil Appeals of Texas. Amarillo.

May 24, 1913.

Rehearing Denied November 1, 1913.

Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.

Action by J. J. Coffman against the Pecos & Northern Texas Railroad Company. From a judgment for plaintiff, defendant appeals. Modified and affirmed.

Madden, Trulove & Kimbrough, of Amarillo, Terry Cavin & Mills, of Galveston, and Carl Gilliland, of Hereford, for appellant. Knight & Slaton, of Hereford, and Capps, Cantey, Hanger & Short and D. B. Trammell, all of Ft. Worth, for appellee.

HENDRICKS, J.

This is the second appeal of this cause, the first having been made to the Court of Civil Appeals of the Second District, from the district court of Deaf Smith county, reported in 56 Tex. Civ. App. 472, 121 S. W. 219; the judgment of the trial court, for the sum of $17,500, upon that appeal having been reversed by said appellate court.

The appellee claims to have received certain injuries, while a passenger upon one of appellant's trains, alleging the negligence of appellant in running into an open switch and colliding with some freight cars on the siding, and claiming that by the force of the collision he was thrown from the seat in which he was sitting and against the back of another seat and to the floor of the coach.

First. By different specifications of error, and in different phases, the appellant, railway company, in its first, second, third, and fourth assignments of error, assails the action of the district court in permitting "traumatic hysteria" to become an issue in the cause as a consequential injury, principally contending that the general allegations of plaintiff's injury are not sufficiently specific to comprehend the proof of the issue. We find from this record that "traumatic hysteria" is a specific disease of the mind, often produced from shock, and the injured person may suffer from loss of sensation as a result thereof, the same as in paralysis, to the extent of producing anæsthesia of the body, believed by the plaintiff to be affected, as that the sufferer in a developed case, as indicated by this record, may stand the application of tests which in a normal body would cause flinching and pain; and, as expressed by one expert, you may "prick him with a pin without any demonstration, just the same as a man with a paralyzed nerve." Whether functional, or a seated disease; whether with or without a pathological basis, it is clear from this record, as expressed by Dr. Maguire, an expert witness for appellant, traumatic hysteria "often follows a shock, injuries, or accidents or things of that kind," and "persons suffer a loss of sensation and absence of power in the motor nerves to different portions of the body from that element superficially, very similar to that which follows a destruction of the nerve cells, sometimes both of motion and sensation"; and, as expressed by Dr. Herzel, appellee's witness, traumatic hysteria "is a serious trouble, and affects both motor and sensuory nerves * * * and is hysteria produced from an injury, * * * and they use the word `traumatic' because the man may be in an accident, and he receive a fright at the same time, and in such hysteria he refers to that particular part of the body, but the disease is in the brain, and it remains with him for years." The testimony of this disease was principally injected into this record by the appellant, as it believed at the trial, and contends now, that evidence of such a complaint was not within the scope of appellee's pleadings sufficiently to make a presentation of such issue to the jury, and presented by appellant at the trial upon the theory, if appellee was telling the truth as to his sensations aches, and his pains, he may have been suffering from such a complaint, and not from any "serious spinal cord ailment described by his doctors as emningio mielitis, and sclerosis of the cord," and did not begin to object to the testimony as supporting an issue in the cause until Dr. Herzel, one of appellee's witnesses, on direct examination, in rebuttal, testified rather abstractly, as shown by this record, in regard to this specific complaint. However, whatever the source of the testimony, when the matter finally developed, the solution of it as an admissible issue in the cause is referable to the sufficiency of appellee's pleadings.

The general rule appropriate to this subject is: "The general allegation of damages will suffice to let in proof and to warrant a recovery of all such damages as naturally and necessarily result from the wrongful act complained of. * * * But where damages actually sustained do not necessarily result from the act complained of, and consequently are not implied by law, the plaintiff must state in his declaration the particular damage which he has sustained, for notice thereof to the defendants"—and Justice Stayton, in the same case, in illuminating the principle, further says: "The rule, however, is satisfied when from the facts stated the law infers other fact or facts; for whatsoever the law infers from a given state of facts, the adverse party is presumed to know, and must take notice of, whether it is specially pleaded or not." Railway Company v. Curry, 64 Tex. 87.

In the case of Rapid Transit Ry. Co. v. Allen, 54 Tex. Civ. App. 245, 117 S. W. 486, the Dallas Court of Civil Appeals had under consideration the testimony of an expert that the injured plaintiff was a "mental wreck." Justice Tolbert said in that case: "Among the cases of the Supreme Court of this state Railway Co. v. McMannewitz, 70 Tex. 73 especially seems to be in point; for, if a heart disease can be necessarily or legally implied from injuries to the spine, chest, head, and limbs, we see no reason why the mental condition in which the physician says he found the appellee may not likewise be inferred or implied from her shattered nervous system, and the injury alleged to her head and spine." In the case of International & Great Northern Railway Co. v. Pina, 33 Tex. Civ. App. 680, 77 S. W. 979, appellee's allegations were that he was greatly bruised, wounded, and mangled on his head, arms, abdomen, back, and legs, and the contention of appellant in that case that the allegations were not sufficient to permit proof of fits and spasmodic attacks, as a result of a congestive condition of the brain, also the evidence of impairment of his eyesight, was overruled. In this latter case, Justice Fly quoted the case of Tyson v. Booth, 100 Mass. 258, where proof of fits, without a special allegation, was permitted under the general allegation of an injury to the spine, chest, head, and limbs. We gather from the Supreme Court of Indiana, in the case of Oölitic Stone Co. v. Ridge, 174 Ind. 558, 91 N. E. 944, this statement of the negative result of the general rule, as follows: "The authorities affirm that the rules of pleading do not exact that every effect or result due to a particular injury, or injuries, shall be set forth in the complaint by the plaintiff in an action like this in order to recover on account thereof." In that cause proof of a cough, existent for two years, and impairment of the appellee's memory, not specially alleged, was admissible under general allegations of injury to the body, and the Indiana court further said that such ailments were "results which may be naturally and probably traced to or arise out of the facts alleged that he was injured in his head, breast, back, and shoulders," etc. In this cause appellee alleges that by reason of the sudden jar of the collision, and having been thrown against the seat and floor, he sustained very severe injuries in his back, and side and thereby received and "sustained a concussion and other injuries to his spine, his spinal column, and the nerves and muscles thereof and connected and influenced and controlled therefrom, * * * and has suffered from loss of sensation, and the motor nerves in the lower part of his body * * * have become permanently injured, which has occasioned * * * partial paralysis," further alleging a progression of his injuries. He also states, very pertinent we think to the question involved, that he has "suffered from the time of his said injury at various times, both physically and mentally, and all of said injuries and sufferings have been the result of the negligence of the defendant." The allegations of the concussion to the spine and of the nerves and muscles in connection therewith, and the loss of sensation and the condition of his motor nerves and of the mental and physical suffering, with the proof that "traumatic...