Rapid Transit Ry. Co. v. Williams

• Citation: 136 S.W. 267
• Parties: RAPID TRANSIT RY. CO. v. WILLIAMS.
• Decision Date: 01 April 1911
• Court: Court of Appeals of Texas

Page 267

136 S.W. 267

RAPID TRANSIT RY. CO. v. WILLIAMS.

Court of Civil Appeals of Texas.

April 1, 1911.

Appeal from District Court, Dallas County; R. C. Roberts, Judge.

Action by Narcissus Williams against the Rapid Transit Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and remanded.

Baker, Botts, Parker & Garwood, Walter H. Walne, and Spence, Knight, Baker & Harris, for appellant.

TALBOT, J.

Narcissus Williams sued the appellant and the Metropolitan Street Railway Company for damages for alleged personal injuries resulting from an accident on Commerce street, in the city of Dallas, on the 13th day of October, 1908. On the trial of the cause appellee dismissed her suit against the Metropolitan Street Railway Company, and secured a judgment against appellant in the sum of $200. Appellant's motion for a new trial having been overruled, it perfected an appeal to this court.

The first assignment of error complains that the court erred in the following paragraph of his charge to the jury: "If you find for the plaintiff, you will find for her such sum of money as you may believe from the evidence will pecuniarily compensate her for the physical pain, if any, mental suffering, if any, and her diminished or impaired capacity, if any, to earn money, proximately resulting to her from the accident in question, together with a reasonable doctor's bill to Dr. J. W. Anderson for treating her, not to exceed $26 for doctor's bill, and a reasonable sum for medicines, not to exceed the sum of $1." This assignment must be sustained. There was no evidence showing or tending to show that any amount expended or incurred by the appellee on account of doctor's bills or medicine was reasonable. The extent of the evidence on these issues was that, after the accident, appellee was treated by a physician, and that his bill for the services rendered her was $26, and that appellee herself bought one bottle of medicine for which she paid $1. It has been repeatedly held in cases of this character that where there is evidence as to the amount of expense incurred for doctor's bill and medicine in the treatment of the injuries alleged, but no evidence that such amount is a reasonable charge therefor, it is error for the court to submit such item to the jury as an element of damage. Railway v. Bellew, 22 Tex. Civ. App. 264, 54 S. W. 1079; Railway v. Reasor, 28 Tex. Civ. App. 302, 68 S. W. 332; Wheeler v. Railway, 91 Tex. 356, 43 S. W. 876; Railway v. Hemphill, 125 S. W. 340.

Again, the allegations of the petition with reference to the injuries sustained by appellee as a result of the accident are that the agents of appellant suddenly started the car from which she was attempting to alight, "thereby throwing plaintiff violently to the ground, and bruising and inflaming her left shoulder joint, causing arthritis, bruising and lacerating the right hip, causing inflammation of same, and injuring said joint, wrenching, stretching and tearing muscles and ligaments of the lumbar region of the back, bruising and lacerating her head and right side; which said injuries are serious and permanent in their nature from which she will not and cannot permanently recover. That by reason of said injuries she was confined to her bed for eight weeks, suffered serious mental anguish and physical pain," etc. The petition contains allegations of no injuries other than those included in that portion of it here quoted. The appellee testified "I am hurt and my whole arm and neck is affected. I am hurt from down here on the side, and my worst complaint is right in my breast and neck and arms. There is a knot growing in my side. I am not hurt only in my body, neck and arms and side; that is where the greatest misery is. My shoulder is affected and the whole part of me down here is affected clear up in here (indicating). I am so hurt that I can't make my living; I have been trying to work to make something and I make a poor-out working, I go right down." Again, she said: "My shoulder is hurt so I can't use my arm, but when I do use this arm I have to drop everything out of my hand. As I told you, the greatest misery is right in my neck and breastbone here, and in my back. There is a knot growing in there. My back is affected. It just swells up and is sore and it aches. I never...