T. & P. R'Y Co. v. Curry

• Decision Date: 28 April 1885
• Docket Number: Case No. 5354.
• Court: Texas Supreme Court
• Parties: T. & P. R'Y CO. v. M. S. CURRY.

64 Tex. 85

T. & P. R'Y CO.

v.M. S. CURRY.

Case No. 5354.

Supreme Court of Texas.

Apr. 28, 1885.

APPEAL from Tarrant. Tried below before the Hon. M. D. Priest, Special Judge.

The opinion states the facts.

Davis, Beall & Rogers, for appellant, cited: International & Great Northern Railway v. Irvine, Texas Law Review, vol. 5 (February 17, 1885), p. 89, citing following cases: Bristol, etc., Co. v. Gridley, 28 Conn., 201;Vanderslice v. Newton, 4 N. Y., 130; Baldwin v. N. Y. Nav. Co., 4 Daly, 314; Burrell v. N. Y. & S. S. Co., 14 Mich., 34;Lewis v. Paull, 42 Ala., 136;Lindsey v. Dempsey, 45 Ind., 247;Gay v. Winter, 34 Cal., 153;Herin v. McCaughin, 32 Miss., 17.

Ball & McCart, for appellee, cited; Whalen v. R. R., 60 Mo., 323; Pennsylvania & Ohio Canal Co. v. Graham, 63 Penn. St., 290; T. W. & W. R. R. v. Braddley, 54 Ill., 19; Mildway v. C. & N. W. R. R., 36 Ia., 46; Fairchild v. Stage Co., 13 Cal., 599; McKenley v. C. & N. W. R. R., 44 Ia., 414; Craker v. C. & N. W. R. R., 36 Wis., 677; Seeger v. Town of Barkmonstead, 23 Conn., 98; Hewlett v. Crochey, 6 Taunt., 277; Sutherland on Damages, vol. 3, 259-268; Thompson on Carriers of Passengers, 570; Field on Damages, sec. 667; Sedgwick on Damages, 35, 36.

STAYTON, ASSOCIATE JUSTICE.

The petition alleges that while the appellee was a passenger in one of the appellant's cars, “through its carelessness, gross negligence and default, the said car was run off the track of said railroad and thrown down the embankments thereof, so that said plaintiff thereby became sick and was greatly injured, cut, bruised and wounded internally and externally, about his hip and spine, and was wholly unable to attend to the transaction and performance of his usual and necessary business, and has so continued from then until now. And plaintiff avers that by reason of said injuries he has become permanently disabled and a cripple for life, and will never recover from the effects thereof, to his actual damage $20,000,” etc.

There was no special demurrer to the petition, except in so far as it sought to recover exemplary damages, and in this respect a demurrerto the petition was sustained. The evidence was sufficient to show that the injuries resulted from the negligence of the appellant, and that they were of the character alleged.

The court, among others, gave the following charge to the jury: “If you find for plaintiff you may take into consideration, in estimating damages, if any have been shown by the testimony, mental and physical pain and suffering, the nature, extent and probable duration of the injury, and any impaired capacity to earn money or pursue an occupation.”

It is not claimed that this charge was erroneous as a legal proposition applicable to the measure of damages in cases founded on personal injuries; but it is claimed that in the absence of some pleading setting up mental suffering as an element of damages in this case, the jury should not have been permitted to consider it.

The rule regulating pleading in this class of cases is thus stated: “The general allegation of damages will suffice to let in proof and to warrant recovery of all such damages as naturally and necessarily result from the wrongful act complained of; the law implies such damages; that is, damages of that sort, and proof only is necessary to show the extent and amount. But where damages actually sustained do not necessarily result from the act complained of, and consequently are not implied by law, the plaintiff must state in his declaration the particular damage which he has sustained, for notice thereof to the defendant; otherwise the plaintiff will not be permitted to give evidence of it on the trial.” 3 Sutherland on Damages, 426. The same rule is adopted by Mr. Sedgwick, who refers to the more enlarged and particular statement of the rule made by Mr. Chitty as the correct rule and exposition of the reasons on which it is based. 2 Sedgwick on Damages, 606.

This is a just rule of pleading; for it requires the person seeking relief, by his pleadings, to inform the adverse party of the facts upon which he intends to rely for a recovery, thereby avoiding surprise.

The rule, however, is satisfied when from the facts stated the law infers other fact or facts; for whatsoever the law infers from a given state of facts, the adverse party is presumed to know, and must take notice of, whether it is specially pleaded or not??

The law infers, when such injuries to the person are shown to have existed as are alleged...