Texas Brewing Co. v. Dickey

• Decision Date: 04 March 1899
• Citation: 49 S.W. 935
• Parties: TEXAS BREWING CO. v. DICKEY.
• Court: Texas Court of Appeals

49 S.W. 935

TEXAS BREWING CO. v. DICKEY.

Court of Civil Appeals of Texas.

March 4, 1899.

Appeal from district court, Tarrant county; W. D. Harris, Judge.

Action by R. C. Dickey against the Texas Brewing Company. From a $5,000 judgment for plaintiff, defendant appeals. Reversed. unless a remittitur for $975 shall be filed.

W. R. Sawyers, for appellant. W. R. Parker, O. W. Gillespie, and M. E. Smith, for appellee.

CONNER, C. J.

Appellee sued appellant for $10,000 for personal injuries alleged to have been inflicted on June 5, 1896, on Fourteenth street, in the city of Ft. Worth, one of its principal streets, between Main and Houston streets, by a team consisting of two large horses attached to a wagon owned by appellant. He alleged that one of appellant's servants, while using said team, went away from it, negligently leaving it standing in Houston street without being tied or secured in any manner,—said team being wild and unruly, and unused to the ordinary noises in a city, and in the habit of running away, all of which was known to appellant; that, if said team was fastened at all, it was not sufficiently fastened to prevent it from running away; that while so standing the team became frightened, ran away up Houston street and out Fourteenth, striking with great violence appellee and his buggy in which he was sitting, destroying the buggy and seriously injuring appellee, by which he became sick and diseased, and will always suffer great pain and mental anguish; that appellee was a dentist, having a practice of $2,000 per year, and on account of said injury will be unable to pursue his calling; that he paid for nursing $100, doctor's bills $100, and medicine $25, and that his capacity for earning money has been greatly lessened; that the ordinances of the city of Ft. Worth, to wit, Ordinance 669, art. 206, tit. 7, c. 1, of the Revised Criminal Ordinances of the City of Ft. Worth, make it unlawful for any person or persons to leave standing upon any public street or alley of said city any horse or horses, mule or mules, harnessed to any wagon, carriage, buggy, or other vehicle, unless said horse or horses, mule or mules, shall be well and securely fastened to a post firmly set in the ground or sidewalk, or to a ring and staple securely and firmly placed in the sidewalk for that purpose, or to a cast-iron weight, with a ring attached, weighing not less than 30 pounds, and article 208 of the same ordinance provides a penalty for the violation of said above-named ordinance, of a fine in any sum not less than $5 nor more than $25 for each and every offense. The trial amendment of plaintiff alleged that the damage to his buggy was $50, and that the damage to his horse was $50. Appellant, to said petition, by its first amended answer, (1) generally excepted, (2) generally denied, and (3) specially pleaded that appellee (plaintiff) should not recover because he was guilty of contributory negligence in blocking said Fourteenth street by driving and stopping carelessly, prior to the accident, in said street, with a wagon on each side of him; and that the appellee (plaintiff) was guilty of contributory negligence, in that his attention was called to the approach of the team for a sufficient length of time prior to the alleged injury for him to have got out of the way of the team, and that he made no effort to get out of the way. Appellant further, by second supplemental answer, specially excepted to appellee's second amended original petition, wherein it alleges that, if said horses were secured at all, they were not sufficiently fastened or secured to prevent them from breaking loose or prevent them from running away, because same was not sufficient, in that it is indefinite and uncertain, and is not sufficiently specific, and pleads a conclusion. This is the second time this case has been before us. See 43 S. W. 577. The material facts are substantially the same now as before, and will not here be recited, except as may be hereinafter done to illustrate our ruling.

In the seventh assignment of error the following section of the court's charge is questioned, viz.: "If you find for the plaintiff, it will be your duty to assess his damages at such sum as you believe will be a fair and reasonable compensation to him for such physical injuries, if any, and such physical and mental suffering, if any, as the plaintiff received or sustained by reason of being run upon or against by the team or wagon of defendant; and, if you believe from the evidence that the plaintiff received injuries of a permanent character, you can, in determining what amount of damages you will assess, take that fact into consideration, as well as the time it took to recover, if he has recovered, or may probably take to recover, therefrom, if you find he has not already recovered. And if you find that plaintiff necessarily lost any time from his business by reason of his injuries, if any, then you may also find such further sum as you believe will be a fair and reasonable...