Stedman Fruit Co. v. Smith

• Decision Date: 08 May 1930
• Docket Number: No. 1941.,1941.
• Citation: 28 S.W.2d 622
• Parties: STEDMAN FRUIT CO. v. SMITH et al.
• Court: Texas Court of Appeals

28 S.W.2d 622

STEDMAN FRUIT CO. v. SMITH et al.

No. 1941.

Court of Civil Appeals of Texas. Beaumont.

May 8, 1930.

Rehearing Denied May 14, 1930.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Action by J. T. Smith and others against the Stedman Fruit Company. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Thomas, Frank & Grady, of Dallas, and King & Jackson, of Beaumont, for appellant.

Howth, Adams & Hart, of Beaumont, for appellees.

HIGHTOWER, C. J.

This suit was filed by the appellees, J. T. Smith and his wife, in one of the district courts of Jefferson county against appellant, Stedman Fruit Company, to recover damages for personal injuries alleged to have been sustained by Mrs. Smith in consequence of alleged negligence on the part of appellant. Appellees alleged, in substance, that on the 10th day of June, 1927, an automobile in which they were driving along Main street in the city of Beaumont was run into and struck by an automobile truck owned by appellant and which was being driven at the time by an employee of appellant, and that in consequence of the collision between the truck and appellees' car Mrs. Smith was caused to be violently thrown from the seat of the car in which she was riding and to be precipitated to the paved street along which they were traveling, and was thereby caused to sustain serious and permanent injuries, which were described quite in detail in the petition. The ground of negligence alleged was, in substance, that while appellees were proceeding north in their car on Main street and were on the proper or right-hand side of the street, the truck of appellant, being driven by a colored man who was the employee of appellant, was proceeding south on Main street and was being driven on the left side of that street, and that it was negligence on the part of appellant's driver to drive the truck on the left side of Main street as he did at the time, and that as a proximate result of that negligence the collision between appellant's truck and appellees' car took place with the resultant injuries to Mrs. Smith. This was the only ground of negligence relied upon by appellees in their pleading and the only issue of negligence that was submitted.

Appellant answered by general demurrer as well as many special exceptions, by general denial, by special averments of contributory negligence on the part of appellees, and especially appellee J. T. Smith, who was driving the automobile, and in addition appellant specially averred that the collision between the truck and the car which caused the injuries to Mrs. Smith was the result of an unavoidable accident, and that therefore appellant was not liable, etc.

The case was tried to the jury and was submitted upon special issues, all of which were answered in favor of appellees, and upon the verdict as a whole, and in accordance therewith, judgment was rendered by the trial court in favor of appellees for $8,000, and appellant's motion for new trial having been duly made and overruled, this appeal was perfected and prosecuted.

The briefs in the case are very voluminous, too much so, and appellant has presented some fifty propositions upon which we are asked to reverse the judgment. We shall not undertake to discuss all these propositions separately, because we regard some of them as being without any force whatever, and shall confine our opinion to such of appellant's contentions as might be considered to have some merit in them.

For convenience, and to save time, we group appellant's first three propositions, which relate to the action of the trial court in overruling about thirty-five special exceptions challenging the sufficiency of appellees' petition as to the nature and extent of Mrs. Smith's injuries. The contention of appellant in this connection is, in substance, that the petition was multifarious, argumentative, and but the opinion and conclusion of the pleader; that the statement of Mrs. Smith's injuries, that is, the nature, character, and extent of her injuries, were stated too generally and not specific enough; and that they were so general and indefinite that appellant was not thereby apprised of what appellees would probably undertake to prove upon the trial, and therefore was not sufficiently informed by the allegations of the petition so that it could properly prepare its defense to this suit. That part of the pleading of the appellees to which these special exceptions were directed showing the nature, character, and extent of the injuries sustained by Mrs. Smith, are found in paragraph 5, section b, of the second amended petition of the appellees, as shown by this record. These allegations are as follows:

"(b) Plaintiff, Mrs. Carroll Smith, wife of the said J. T. Smith, sustained severe painful and permanent personal injuries in that her right knee and the muscles, ligaments and tendons thereof were severely contused and sprained, and she sustained a deep cut in the forehead; her back and the muscles, ligaments and tendons thereof were severely wrenched, contused and sprained, and two bones of her back were partially dislocated and the bones of her left wrist were fractured and the muscles, ligaments and tendons thereof permanently sprained; the vertebra or back bone, and the bony processes thereof were twisted and disturbed and there is a slipping of the sacro illiac joint with consequent disturbance of the normal position of the sacrum and the lower lumbar segments of the spine in relation to the pelvis; that there is a curve in or about the junction of the cervical and dorsal divisions in the back bone and the segments or bony processes thereof; that the said curve is ankylosed or fixed; that one of the bony processes or segments of the spinal column or back bone is fractured and the same has produced and will produce a permanent injury and that she has, ever since said injury, suffered greatly with headaches, pains in the back and hips, the back muscles were contracted, high blood pressure and rapid pulse, extreme dizziness and extreme general weakness; that she has lost in weight and flesh and is mentally depressed and suffers from constipation and general autointoxication; the bones of her right wrist were fractured, injuries to her left knee, deep cut in top of her head on the left side; injuries to her neck and two or more vertebrae of her neck are dislocated and wrenched, and the muscles, ligaments and tendons sprained and bruised, and injuries to her back, several of the vertebrae dislocated, some being pulled apart and others jammed together. All of these injuries caused an extremely nervous condition and caused permanent injuries to her eyes and vision and nervous system generally. She has lost much weight and is unable to sleep; and the use of her right hand and arm which are in such condition that movement causes pain and pulling of the ligaments and tendons of her neck so that she cannot use her right arm and hand. Her right knee was sprained and injured, contused and slightly stiffened and these conditions have caused lack of control and ability to use her knee and her knee gives way in walking and getting up and down and there is probably a paralysis of the muscles and nerves connected with the knee, rendering it impossible to control the movements of the knee. Her eyesight has been so affected and also her hand, that she is unable to drive a car and as she walks along or rides along everything grows dark and she loses her vision temporarily, and she has suffered and will continue to suffer in the future great physical pain and mental anguish, and all of her said injuries are permanent and the direct and proximate result of said collision, to her actual total damage in the sum of Twenty Five Thousand ($25,000.00) Dollars for which she sues."

Without undertaking to discuss in detail the sufficiency of these allegations touching the nature and extent of Mrs. Smith's injuries, we hold that the petition was not subject to the attacks made upon it by appellant's special exceptions, but was sufficient as a full and fair statement of the ultimate facts upon which the appellees were relying for recovery, if in fact the statements, as made, were true. We overrule appellant's contention in this connection.

By its fourth proposition appellant challenges the action of the trial court in defining the term "negligence." That term was defined by the trial court as follows: "(a) Negligence is the failure to use ordinary care."

In the next paragraph following the court defined "ordinary care" as follows: "(b) Ordinary care is that degree of care that a person of ordinary prudence would use under the same or similar circumstances."

As we gather, the contention of appellant in this connection is, in effect, that the court should have simply told the jury that "negligence is the failure to exercise such care as an ordinarily prudent person would have exercised under the same or similar circumstances." In other words, it seems to be appellant's contention that because the court defined the term "negligence" in one paragraph and the expression "ordinary care" in the next paragraph that this constituted prejudicial error, in that it confused the jury in their effort to understand the definition of the term negligence. We overrule this contention. It would not, of course, have been error had the trial court defined "negligence" just as counsel for appellant think it should have been defined. Neither was it error to define the term "negligence" separately from the expression "ordinary care," as the court did.

By its fifth proposition appellant contends that the trial court erroneously defined the term "new and independent cause." The court's definition of that term was as follows: "A new and independent cause is an intervening efficient force which breaks the causal connection between the original wrong and the injury. Such new force must be sufficient...