San Antonio St. Ry. Co. v. Muth

• Decision Date: 30 May 1894
• Citation: San Antonio St. Ry. Co. v. Muth, 27 S.W. 752, 7 Tex. Civ. App. 443 (Tex. App. 1894)
• Parties: SAN ANTONIO ST. RY. CO. v. MUTH.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

27 S.W. 752

SAN ANTONIO ST. RY. CO. v.MUTH.¹

Court of Civil Appeals of Texas.

May 30, 1894.

Appeal from district court, Bexar county; G. H. Noonan, Judge.

Action by William Muth against San Antonio Street-Railway Company for damages for injuries to his minor child.Judgment for plaintiff, and defendant appeals.Modified.

A. W. Houston and Perry J. Lewis, for appellant.

NEILL, J.

This is an appeal from a judgment of $2,935 recovered by appellee by reason of injuries inflicted upon his minor child by the negligence of appellant, whereby he lost her services during her minority and incurred certain expenses, etc.The nature of the case fully appears from the court's conclusions of law and fact.

Conclusions of Fact.

The appellant is, and was on the 23d day of December, 1891, a street-railway company operating its line of railway for carrying passengers over several streets of the city of San Antonio, Tex.On said day, plaintiff's daughter, Emma Muth, who was then about 17 years old, entered one of appellant's cars, on the corner of Grayson and Pine streets, in the city of San Antonio; and, in consideration of the payment of the regular fare, appellant agreed to transport her to the corner of Houston street and Avenue C, in said city.While she was on said car as a passenger the servant of appellant operating the car, before reaching a curve in the track of the company's railway, negligently applied the full motive power to said car, and ran it at a high rate of speed, and made, on approaching said curve, where appellant had negligently failed to provide a guard rail, no effort to check the speed of said car, whereby the car was thrown from the track, and appellee's daughter was thrown from the car, through one of the windows thereof, with great force and violence, upon the street, a distance of 10 feet from the car, and was thereby injured, bruised, and wounded.The appellant was guilty of negligence in failing to exercise the degree of care required of a common carrier for the safety of a passenger.That, on account of the injuries inflicted upon appellee's daughter by the negligence of appellant, it was necessary for her father to have a surgical operation performed on her.That the operation and medical services were performed by Dr. Kennedy, and were reasonably worth the sum of $600, for which appellant would be liable if the party performing such services was allowed, under the laws of this state, to practice medicine and surgery, for which services $161 were voluntarily paid by the appellant.That, on account of the injuries so negligently inflicted, nurses were necessarily engaged by appellee to attend his daughter, whose services were reasonably worth the sum of $300, and he incurred on account of said injuries $75 expenses for drugs, etc.That the injuries inflicted upon appellee's daughter were serious and permanent, and of such a nature as to prevent her performing services for her father during her minority, which services were reasonably worth the sum of $1,960, which are lost to appellee by reason of appellant's negligence.

Conclusions of Law.

Appellant's first assignment of error is as follows: "The court erred in overruling and not sustaining defendant's special exception to plaintiff's first amended original petition, in this: that plaintiff alleged `that, when said car approached the aforesaid curve, defendant's servant negligently applied the full power to said car,' because the same states a conclusion of the pleader, and does not state the facts or circumstances that constitute the negligence complained of, and because said allegation does not state such facts as would cause the application of full power, as alleged, to be negligence, and because the defendant is entitled to the allegation of specific facts which constitute negligence, and should not be held, upon special exception, to answer general allegations stating the conclusions of the pleader.And, further, because defendant specially excepted to that portion of plaintiff's petition alleging injuries to plaintiff's minor daughter, in general terms, that she was injured or crippled, without describing the alleged injuries; the allegations being the general conclusion that she was seriously injured or crippled, without describing the alleged injuries, — the allegations being the general conclusions that she was seriously injured and permanently crippled.And defendant is entitled, upon special exceptions, to have the specific character of the injuries set forth, in order that defendant may be prepared with evidence to defend against such specific charges.And, further, because defendant specially excepted to that part of plaintiff's petition alleging that a surgical operation had been performed upon the body of plaintiff's minor daughter, because said allegation does not say what surgical operation was performed, nor what part of the body of said minor daughter was operated upon, nor the effect of said operation, nor by whom said operation was performed, and because defendant is entitled to specific allegation as to what the operation was, by whom and upon what part of the body it was performed, and what the effect thereof was.Such general allegations are subject to the special exceptions offered thereto."In appellant's brief this assignment is asserted as a proposition.The writer entertains some doubt as to whether this assignment, as presented in the brief, should be considered.The assignment contains three separate and distinct points, and it would seem from rule 30(20 S. W. viii), prescribed by the supreme court for this court, that each of these points should be stated under the assignment, in the shape of a proposition.However, the rules were never intended to hedge the courts of civil appeals around with technical and arbitrary requirements, so as to cut off the approach of such parties as seek relief in good faith from the consequences of supposed errors committed to their prejudice in the trial courts.Agency Co. v. McClelland(Tex. Sup.)23 S. W. 1102.The rulings complained of are made sufficiently specific from the assignment of error, and the separate points involved are as apparent from the assignment as they could be made by asserting them under it in the form of distinct propositions.The plaintiff alleged in his petition that the car in which his daughter was riding had a defective brake, and that when the car aproached the curve where it was derailed the defendant's servant negligently applied the full power to the car, and by reason of the defective brake was unable to control or check the speed thereof when the car reached the defective track at said curve, and thereby its derailment was caused.

An exception was interposed to that part of the petition which states that, when the car approached the curve, defendant's servant negligently applied the full power to the car, upon the ground that such allegation is a conclusion of the pleader, and does not state the facts or circumstances constituting the negligence complained of, nor such facts as would cause the application of the full power as alleged to be negligence.The correctness of the court's action in overruling this exception is the first point involved in this assignment.The allegation as to the application of the power to the car is one of a specific fact, and not a conclusion of the pleader.As to whether it was an act of negligence depends upon the existence of the other facts alleged in connection with it, and the conclusion reached by the jury, or judge passing upon the facts as a jury, from a consideration of such facts.It was a sufficient allegation to warrant a jury in finding that it was an act of negligence, when considered in connection with the concomitant facts alleged, causing the injury to plaintiff's daughter, and the exception was properly overruled.It is not necessary to aver with great particularity any specific acts of negligence which caused the injury.Railroad Co. v. Brinker, 68 Tex. 502, 3 S. W. 99.

It was charged in plaintiff's petition that his minor child was violently thrown through a window of the car, upon the ground, by reason whereof she was seriously injured and permanently crippled, so as to disable her from performing services and labor of any kind.This part of the petition was excepted to upon the ground that it does not show in what manner the child was injured or crippled, and does not describe the alleged injuries, but merely alleges that she was seriously injured and permanently crippled.From the court's overruling this exception arises the second point included in the first assignment.If, through the negligence of another, a minor child is "seriously injured and permanently crippled," so as to disable her from performing services and labor, which her father has a right to, he certainly has a cause of action against the party negligently causing such injury, if not contributed to by either himself or the child, for the loss of the services of such minor.The question here is one of pleading, and not of evidence.In the case of Railway Co. v. Adams(Tex. Civ. App.)24 S. W. 839, the question upon which the case was decided was as to the admissibility of evidence of specific injuries under the allegation that plaintiff was "wounded, bruised, injured, and hurt permanently, etc.," and it is unnecessary for us to express any opinion as to the correctness of the decision upon that point.If, however, the opinion in that case should be so construed as to hold that an allegation in a petition that a passenger is seriously injured and permanently crippled is defective because it does not specifically describe the injury, we should be strongly inclined to doubt its correctness.

The plaintiff's petition alleged that, in consequence of the injuries inflicted on his daughter by the negligence of defendant, it became necessary to perform a surgical operation upon her body, to his great expense and damage...