Texas Electric Ry. v. Whitmore

• Decision Date: 14 April 1920
• Docket Number: (No. 6174.)
• Citation: 222 S.W. 644
• Parties: TEXAS ELECTRIC RY. v. WHITMORE.
• Court: Texas Court of Appeals

222 S.W. 644

TEXAS ELECTRIC RY. v. WHITMORE.

(No. 6174.)

Court of Civil Appeals of Texas. Austin.

April 14, 1920.

Rehearing Denied May 19, 1920.

Appeal from District Court, McLennan County; H. M. Richey, Judge.

Action by Don H. Whitmore against the Texas Electric Railway to recover for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

Templeton, Beall, Williams & Calloway, of Dallas, and Sanford & Harris, of Waco, for appellant.

Alva Bryan and W. E. Terrell, both of Waco, for appellee.

BRADY, J.

This is a suit by appellee against appellant for damages for personal injuries, alleged to have been received by appellee from a collision between a street car, alleged to have been owned and operated by appellant, and an army truck and trailer on which was loaded a wrecked airplane; appellee being on the trailer at the time of the accident. It was averred that appellee was a soldier in the mechanical branch of the aviation section of the United States army, and, in company with other soldiers, was carrying the wrecked airplane on an army truck to the camp. The accident occurred between Eighth and Ninth streets on Austin avenue, in the city of Waco; the trailer being struck by the street car while crossing the track.

Appellant answered by demurrers, general denial, and a plea of contributory negligence. The case was submitted to the jury upon a general charge, embracing the following issues of negligence: (a) The alleged failure of the motorman to keep a proper lookout. (b) The failure of the motorman to sound the gong, ring the bell, or blow the whistle on the street car. (c) The operation of the street car, at the time and place of the collision, at a high and dangerous rate of speed. (d) The failure of the motorman to stop the car and avert the collision after having seen a signal given by members of the truck crew, who had gotten off the truck or trailer onto the street. The jury returned a verdict for the plaintiff for $15,000, and judgment was rendered accordingly.

There is evidence to support a finding as to each of the grounds of negligence submitted by the court in the main charge. The pertinent facts as to the questions presented in the assignments discussed in the opinion will be there stated.

Opinion.

The first assignment of error complains of the action of the trial court in overruling a special exception to a portion of appellee's petition, alleging:

"That he broods over the fact that his body has been scarred and disfigured, and as a result thereof is depressed and suffers great mental and physical pain as a result of said disfiguration and the loss of the use of said arm."

The point is specifically made that mental anguish suffered by an injured person by reason of the fact that he broods over a scarred and disfigured body is too remote to be the subject of compensation. In appellant's brief the following testimony by appellee on this point is quoted:

"Before I was injured I was always proud of the fact that I had good-looking arms and shoulders for a young fellow, but now I have a big old bone sticking up there and a big old scar there. I participated in athletics and swam all summer long, and it does not look very good now. I always feel like I do not want anybody to see it. It is an ugly looking place. Feel like I will always have to keep it hid."

Appellant, as authority for the proposition that mental anguish of such a character is too remote, cites the case of Railway v. Dickens, 54 Tex. Civ. App. 637, 118 S. W. 612, a decision by this court. Appellant specially relies upon this statement in the opinion by Chief Justice Fisher:

"* * * Anguish of the mind, wholly sentimental, arising from the contemplation of a disfigurement of the person, cannot be considered for the purpose of swelling the damage. * * * The law regards supposed injuries to sentimental feelings of this character as too remote and speculative to allow it as an element of damages in cases where no malice exists."

The statement just quoted was made by Chief Justice Fisher in connection with an argument of counsel, and does not seem to us to be applicable to the question raised in the instant case. The cases cited in support of the doctrine seem to recognize that mental anguish, when the natural or reasonable result of the injuries sustained, is a basis for the recovery of damages, and they condemn only the allowance of damages for mental anguish wholly sentimental.

The following authorities sustain the proposition that mental suffering, which an injured person experiences as the result of contrasting his injured condition with his previous state, may be considered by the jury in estimating damages for such injuries. M., K. & T. Ry. Co. v. Miller, 29 Tex. Civ. App. 460, 61 S. W. 978; Western Union Tel. Co. v. Simmons, 32 Tex. Civ. App. 578, 75 S. W. 822; St. Louis S. W. Ry. Co. v. Cleland, 50 Tex. Civ. App. 499, 110 S. W. 126; Decatur Cotton Seed Oil Co. v. Belew, 178 S. W. 612; Chicago, R. I. & G. R. Co. v. Smith, 197 S. W. 614; Townes on Torts, p. 162.

The facts in the above cases, touching mental suffering, differ only in degree from those of the instant case, and we think announce the doctrine prevailing in this state. Therefore we hold that it was not reversible error for the trial court to overrule the special exception involved in this assignment.

The second point presented in appellant's brief is the failure of the trial court to instruct the jury not to consider a certain portion of the argument of counsel for appellee. This argument related to the statement of counsel, in substance, that the case was an unequal contest, because of the superior skill and ability of appellant's counsel, and the fact that appellant had a paid claim agent and paid general attorneys, whereas appellee was lacking in these facilities or advantages.

We have carefully considered the argument in question, and while we think it was irrelevant and in the main perhaps improper, we are persuaded that it was not calculated to influence or prejudice the jury against appellant, and that it did not have such effect. We do not think it presents reversible error, and the assignment is overruled.

The next assignments complain of the submission of the several grounds of negligence to the jury, because there was no evidence supporting any of these issues. With this contention we cannot agree. As to the first issue, it is sufficient to say that there was evidence that the motorman was standing on the front of the street car, at and before the time of the accident, and after the trailer was struck and the street car had stopped the motorman stated, "I will open the door," and he did open it, and he stated to some of the occupants of the truck and trailer that he did not see them. There was testimony that there was no obstruction between the street car and the trailer at the time and just before the accident, and nothing to prevent the motorman seeing the same had he been keeping a proper lookout. There was testimony tending to show that the motorman was looking ahead, but the conflict was sufficient to raise the issue and to take it to the jury. The motorman did not testify, and the jury were entitled to consider all the circumstances as well as the statement of the motorman above referred to.

As to the second issue, the failure of the motorman to sound the gong, ring the bell, or blow the whistle on the street car, it is claimed that there was no evidence to show that such failure, if any, had any causal connection with the injuries received by appellee. While the testimony was conflicting, there was evidence that neither the bell, gong, nor whistle was sounded after the street car left Eighth street, and that the truck and trailer passed over the track from 25 to 75 feet ahead of the street car, and that the appellee had his back turned to the street car and did not see it. There was also evidence to the effect that when appellee first saw the car it was right on him, and he had no opportunity to extricate himself from danger. Under these circumstances, we think it was...