San Antonio Traction Co. v. Probandt

• Decision Date: 16 February 1910
• Parties: SAN ANTONIO TRACTION CO. v. PROBANDT.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

125 S.W. 931

SAN ANTONIO TRACTION CO. v. PROBANDT.^†

Court of Civil Appeals of Texas.

February 16, 1910.

Rehearing Denied March 9, 1910.

Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by Annie Probandt against the San Antonio Traction Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Ogden, Brooks & Napier, for appellant. Frederick Murphey, Perry J. Lewis, and H. C. Carter, for appellee.

FLY, J.

This is a suit for damages growing out of injuries alleged to have been inflicted upon the person of appellee through the negligent derailment of a car belonging to appellant upon which appellee was a passenger. The cause was tried by jury, and resulted in a verdict and judgment in favor of appellee for $15,000.

The evidence is sufficient to form a basis for concluding that appellee was seriously and permanently injured through the negligent derailment of a street car being operated by appellant for hire, upon which appellee was a passenger. In this connection, to dispose of the contentions that appellee was not injured through the agency of appellant, but by falling downstairs, and that the verdict for $15,000 is excessive, we hold that there was sufficient evidence to fully establish that appellee received all of the injuries through the derailment of appellant's car, and not from falling down a stairway, and that her injuries were of such a nature as to justify a verdict for the sum found by the jury. Appellee had fallen downstairs and had hurt her right arm just above the wrist, and it had not fully healed at the time of the derailment, but she had received no other injury from the fall. Appellee testified to those facts, and was corroborated by her mother, brother, sister, and the physician, Dr. Goeth. It is true that Mrs. Wurtz and Catherine Niggli swore that appellee received other injuries from the fall on the stairs, but both of the witnesses were prejudiced against appellee and her family, and their testimony could readily be discarded by a jury. The evidence was that, when the derailment took place, appellee's neck was thrown against one of the iron bars running across the windows, and she was so badly shocked and injured that she had to be carried out, and she could not hold up her head. The injury was inflicted in June, 1908, and appellee testified that she had been confined to her bed most of the time, and had suffered with her neck since that time, and was compelled to wear a brace to hold her head up. She had her neck in plaster of paris for a while. She has no control of her head when the brace is taken off. She is very weak, and sleeps but little. A physician testified that he found a piece of bone broken from one of the vertebræ of the spine, that his theory was that the posterior muscles were torn loose from their attachment to the bone, and caused her head to fall forward. Another physician testified to the same effect, and that she was in a very nervous state and had a very rapid pulse, never below 115 or 120, even when she was lying down and quiet. The muscles of one side of the neck are atrophied and wasting away. The evidence of the physicians was that appellee's condition was serious and permanent, and that she requires constant attention and nursing, Dr. Goeth testified: "There is very little hope, practically no hope, of improving her condition. I don't think she will ever get any better. I feel sure she will get worse. I have not seen any other cases just like this. I base my opinion that she will get worse on the fact that she is steadily going down, her general condition is getting worse all the time. * * * This lady in my opinion won't get any better. My opinion is she will die in a few years, but I can't fix the date. My opinion is, two or three years, because her circulation is so feeble. My opinion is she is going to get paralyzed after this overexcitement of the leg passes off. It always starts with...