San Antonio Public Service Co. v. Mitchell

• Decision Date: 08 February 1922
• Docket Number: (No. 6680.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 238 S.W. 265
• Parties: SAN ANTONIO PUBLIC SERVICE CO. v. MITCHELL et al.
• Court: Texas Court of Appeals

238 S.W. 265

SAN ANTONIO PUBLIC SERVICE CO. v. MITCHELL et al.

(No. 6680.)^*

Court of Civil Appeals of Texas. San Antonio.

February 8, 1922.

Rehearing Denied March 8, 1922.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Action by E. J. Mitchell and others against the San Antonio Public Service Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Templeton, Brooks, Napier & Brown and J. R. Locke, all of San Antonio, for appellant.

Newton & Woods, Perry J. Lewis, H. C. Carter, Randolph L. Carter, and Champe G. Carter, all of San Antonio, for appellees.

FLY, C. J.

This is a suit for damages instituted by E. J. Mitchell and his wife, Estella Mitchell, against appellant, alleging that Mrs. Mitchell was seriously and permanently injured through the negligence of appellant in stopping its car at a point where there was no landing place, and the track was elevated some two or three feet above the grade of the street, and Mrs. Mitchell, in the nighttime, sought to alight from the car, and fell, and was seriously injured. In an amended petition it was alleged that Mrs. Mitchell had died since the suit was begun, and E. J. Mitchell, for himself and as next friend of his minor child, Edward Leonard Mitchell, prosecuted the suit. The court presented the cause to a jury on eleven special issues, and on the answers thereto rendered judgment in favor of the appellees for $10,000, of which $3,000 was in favor of E. J. Mitchell and $7,000 in favor of Edward Leonard Mitchell.

Appellant seeks through a motion to have this court to consider certain testimony, not incorporated in the statement of facts, but which it claims to have discovered since the adjournment of the court before which the cause was tried. Such a proceeding would be without precedent or authority in Texas, and, we think, would be a dangerous practice, and subversive of the long and wisely established proceedings in appellate courts in this state, whatever may be deemed proper in the courts of other states.

"The transcript is the source from which appellate tribunals obtain their knowledge of the facts involved in the controversy between the parties before them, as well as the source from which they derive their knowledge of the questions upon which it is their duty to pronounce judgment. The reports contain many cases where the parties acted as if they were ignorant of this principle, and this excuses the statement of a principle so plain as to scarcely excuse its expression in words. * * * If the transcript does not contain all that is essential to show error, the appeal will fail, since errors will not be presumed to exist, and a radically imperfect transcript can not show error." Elliott, App. Procedure, § 186.

There are several Texas decisions in which it is held that the appellate court can only look to the transcript in determining the rights of the parties, and must always be governed thereby, except as to cases involving jurisdiction, upon which question the statute permits matters to be heard aliunde the transcript. American Ins. Co. v. Murphy (Tex. Civ. App.) 61 S. W. 956; Sanchez v. Railway (Tex. Civ. App.) 90 S. W. 689. We are not authorized to reverse judgments on the ground of newly discovered evidence. This can only apply to a trial court.

The first proposition in the brief, under assignments of error 25, 26, 27, and 28, assails the sufficiency of the evidence to show that the tuberculosis from which Mrs. Mitchell died was induced by the injuries claimed to have been inflicted through the negligence of appellant. This contention necessitates an investigation and review of the evidence. E. J. Mitchell testified, and there was no direct contradiction of his testimony, that on June 4, 1919, about 11 o'clock p. m., he and his wife were on a car belonging to appellant for the purpose of going from the city of San Antonio to a point at or near Collins garden. When they reached the point of their destination, instead of the car stopping at the usual place, where there was a graveled place, and where the track was level with the street, the car passed the regular stopping place, although E. J. Mitchell had given the stop signal a block back for Garland avenue, where they wished to alight. Mitchell had his baby in his arms, and his wife followed him to the front door to get off. At that place the track was elevated about two or three feet above the street level, and there were weeds about the track, so that they could not know of the elevation at night. Mitchell stepped off with the baby, and, realizing how bad a step it was, he called to his wife to be careful, but she had already followed him, and she fell, one foot out and the other doubled under her. He helped her up, and she said she was not hurt "very bad." The motorman shut the door and moved away, and appellee helped her home, where she fainted just before she got in, and appellee carried her in and placed her on her bed. Her mother and appellee undressed her. Appellee telephoned for the doctor of appellant, and he came and treated her until he died a few days afterward. The regular place for passengers to alight at Garland avenue was perfectly safe, but the car passed that, and stopped at an elevated place among the weeds. That the car had passed the regular place was unknown to appellee. Mrs. Mitchell was pregnant at the time, but that fact was unknown to appellee. Mrs. Mitchell was a healthy woman before she fell, but was in a bad condition after her fall until she died, on April 11, 1920, about 11 months after she was hurt. She was confined to her bed about 5 or 6 months before she died. She gave birth to an infant on March 6, 1920, about 9 months after she was hurt. The child was very sick when born, and died on June 28, 1920. Appellee swore that prior to the accident she was in perfect health, and had never had a doctor with her before that time, so far as he knew, except when she gave birth to her first child, and when she had influenza during the epidemic of 1918. It was in evidence that Mrs. Mitchell was in excellent health after she recovered from the influenza, and never had any cough until after she was hurt. Her cough began about 3 weeks after she was injured, and she grew weaker and weaker until she died. She was examined by Dr. Stout, an expert specialist, in 1918, and he stated that the examination did not show tuberculosis. There was sufficient evidence to show that Mrs. Mitchell was apparently a healthy woman before she was injured, and that if she died with tuberculosis it developed afterwards, and was the result of the injuries.

There was, as usual, conflict in the medical testimony, but all of the physicians who saw Mrs. Mitchell after her injury testified that her right leg was bent or flexed, and that her injuries might have produced pulmonary tuberculosis, which some of the testimony tended to show she had at the time of her death. There was testimony to the effect that Mrs. Mitchell was in apparent good health when she attempted to get off the street car; that she had been in good health for weeks previously; that she fell in alighting from the car, and never was well afterwards, and finally died. Even though she may have had organic troubles which would some time in the future have caused her death, still the testimony is sufficient to show that her death was greatly hastened by the negligence of appellant.

If, as the jury must necessarily have found, the injury to Mrs. Mitchell so weakened her powers of resistance to the attacks of the tuberculosis germs that they seized upon and destroyed, or impaired, her lungs, and thus hastened her death, then the proximate cause of her death was the negligence of appellant. No new cause was shown to have intervened between the injury inflicted by appellant and the death of the injured woman, and appellant cannot shield itself from the effects of its negligence by proof that Mrs. Mitchell had incipient tuberculosis before her injury which developed fatally afterwards. If, as the testimony tended to show, the injury fanned the flames of consumption into activity in the lungs of Mrs. Mitchell, and so weakened her body that it could not resist the attack of the germs, the injury was a proximate cause of the death of the woman. If consumption destroyed the life of the woman, it was aided efficiently by the injury, which became a concurring cause in the destruction of her life. Cohen v. Rittimann (Tex. Civ. App.) 139 S. W. 59; Railway v. Groner, 43 Tex. Civ. App. 264, 95 S. W. 1118, and, 51 Tex. Civ. App. 65, 111 S. W. 667. In the last-cited case Mrs. Groner had consumption, and the negligence shown upon the part of the railway company was in failing to have its waiting room sufficiently heated, by reason of which she contracted cold and died. The court held:

"While, as stated, there was testimony to the effect that consumption could not be caused by exposure to cold, the same witnesses further testified that a severe cold or any other cause which lowered a patient's vitality, might allow the germs to find lodgment and the disease to begin its ravages, when, except for this lowering of vitality, the patient might have ...