Southern Pac. Co. v. Blake

• Decision Date: 11 May 1910
• Citation: 128 S.W. 668
• Parties: SOUTHERN PAC. CO. v. BLAKE.
• Court: Texas Court of Appeals

128 S.W. 668

SOUTHERN PAC. CO. v. BLAKE.

Court of Civil Appeals of Texas.

May 11, 1910.

On Motion for Rehearing, June 1, 1910.

Error from District Court, Harris County; Norman G. Kittrell, Judge.

Action by G. W. Blake against the Southern Pacific Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Baker, Botts, Parker & Garwood and A. L. Jackson, for plaintiff in error. Lovejoy & Parker, for defendant in error.

FLY, J.

This is a suit for damages resulting from personal injuries alleged to have been inflicted on Etta C. Blake, the wife of defendant in error, in the territory of Arizona. The suit was instituted in Harris county, Tex., and a trial resulted in a verdict and judgment in favor of defendant in error for $7,541.75.

The evidence showed that Mrs. Blake was seriously and permanently injured through the negligence of plaintiff in error. She was injured by the derailment of a train on the road of plaintiff in error in Arizona Territory, and no explanation of the derailment was given by plaintiff in error.

The first, second, third, and fourth assignments of error assail the jurisdiction of the district court on the ground that neither of the parties reside in Texas and the injury was inflicted in Arizona. It was alleged in the petition that the defendant in error resided in Alabama, that his wife was injured by a derailment in Arizona, and that plaintiff in error owned and operated a line of railway extending through Arizona and New Mexico and into the state of Texas and had a local agent at Houston, Tex. The evidence showed that plaintiff in error owns the majority of the stock in the Galveston, Harrisburg & San Antonio Railway Company and the Texas & New Orleans Railway Company, and Sedgwick, their agent, was duly served. Plaintiff in error appeared and answered in the cause. Plaintiff in error, by answering, submitted itself to the jurisdiction of the court whether it had any property in Texas or not. York v. State, 73 Tex. 651, 11 S. W. 869; Sam v. Hochstadler, 76 Tex. 164, 13 S. W. 535; Pace v. Potter, 85 Tex. 473, 22 S. W. 300. The cause of action being one at common law and of a transitory nature, the district court had jurisdiction of the subject-matter. Railway v. Mitten, 13 Tex. Civ. App. 653, 36 S. W. 282; Southern Pacific Co. v. Allen, 106 S. W. 441; Southern Pacific Co. v. Godfrey, 107 S. W. 1135. The cases cited by plaintiff in error have no applicability to cases of this character.

The fifth assignment of error is overruled. The jury were confined by the charge to the pecuniary loss sustained by the husband from the wife's diminished capacity, and a failure to qualify the words "diminished capacity" by confining them to labor, or the earning of money, did not mislead the jury. There were pleadings and evidence to sustain the submission of the issue. It was alleged that Mrs. Blake was strong and healthy before she was injured, capable of performing labor, and that since the injury she has not been able to perform any such labor or services.

There was an allegation in the petition that Mrs. Blake "was seriously and permanently injured in the following respects: That her back and hips were sprained, bruised, and injured." And that allegation was supported by proof of injury to either hip. The court confined the injuries to those "substantially as alleged by plaintiff in his petition." It was not error for the court to refuse to charge the jury to disregard an allegation in regard to the left hip being hurt. The right side and hip were injured, and it cannot be surmised that the jury would fix the injury in the opposite side and thigh or would fix the injury in both sides. It was immaterial which one was injured. This disposes of the sixth and seventh assignments of error.

There were allegations that Mrs. Blake was injured in back and hips, stomach and abdomen, and that she was "injured internally upon each and every other part, and each and every organ thereof." No exception was urged to the allegations, and they were broad enough to admit proof of injury in the right thigh and hip, and the court did not err in not withdrawing evidence of injuries to those parts. The same can be said as to impairment of the sciatic nerve.

Defendant in error made out a prima facie case of negligence when he proved that the train of plaintiff in error was derailed and his wife was a passenger and was injured by the...