South Texas Telephone Co. v. Tabb
| Citation | 114 S.W. 448 |
| Parties | SOUTH TEXAS TELEPHONE CO. v. TABB.<SMALL><SUP>†</SUP></SMALL> |
| Decision Date | 04 November 1908 |
| Court | Texas Court of Appeals |
Appeal from District Court, Liberty County; L. B. Hightower, Judge.
Action by Pearl R. C. Tabb against the South Texas Telephone Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Stevens & Pickett and Sleeper, Boynton & Kendall, for appellant. Marshall & Marshall for appellee.
This is a suit by appellee against the telephone company to recover damages on account of injuries sustained by being thrown from a buggy in which she was riding coming in contact with a guy wire extending from a telephone pole on and to a public road in such a manner as to incommode the public. The grounds of negligence alleged is that the telephone company negligently placed its guy wires such a distance within the public road as to incommode the traveling public. There was a verdict and judgment in favor of appellee for $2,000. We find that there is evidence which supports the verdict on the ground of negligence substantially as alleged. The telephone company located the guy wire partially in the public road, and the appellee in the nighttime, in attempting to pass another vehicle, while riding in a buggy, came in contact with the wire, and was thrown from the buggy, and sustained injuries substantially as described by her. There is evidence which justifies the conclusion that she was in the exercise of ordinary care when she was injured, and that the telephone company, while having the right to use the public road, was guilty of negligence in locating the wire where it was placed, and that such location was of a nature calculated to incommode the traveling public in the use of the public road.
Appellant's first assignment of error is that the court erred in permitting Mr. and Mrs. Tabb to testify as to what the plaintiff told them about her injuries. Mr. Tabb was the father of the plaintiff, and testified that he saw his daughter the next day after the injury, and that she seemed to be complaining of her head—complained that the pain commenced where the neck joins the head and went to the front, over one of the eyes. The proposition submitted under this assignment complains that it was not admissible because it does not fall within the rule of res gestæ. No such objection as this was made at the time of the introduction of this testimony. The bill of exception shows merely that it was objected to as leading, and that it called for the conclusion of the witness. It is well established that the appellate court will not consider an objection to the evidence not urged in the court below. Wheeler v. T. S. E. Ry. Co., 91 Tex. 356, 43 S. W. 876. While the assignment also complains of the admission of the evidence of Mrs. Tabb, we do not find that any objection was urged in the court below to her testimony. This is all that it is necessary to say in order to dispose of this assignment, but however, if the question was presented so that we would have to pass upon it, we are clearly of the opinion that the evidence was admissible. St. Louis Ry. Co. v. Haynes (Tex. Civ. App.) 86 S. W. 934, 13 Tex....
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