Texas Mex. Ry. Co. v. Douglas

• Decision Date: 31 January 1888
• Citation: Texas Mex. Ry. Co. v. Douglas, 7 S.W. 77, 69 Tex. 694 (Tex. 1888)
• Parties: TEXAS MEX. RY. CO. v. DOUGLAS.
• Court: Texas Supreme Court

7 S.W. 77

TEXAS MEX. RY. CO. v. DOUGLAS.

Supreme Court of Texas.

January 31, 1888.

Commissioners' decision. Appeal from district court, Aransas county; J. C. RUSSELL, Judge.

Malcolm G. Douglas sued the Texas Mexican Railway Company for damages for injuries incurred in its service. Judgment for plaintiff. Defendant appeals.

Thomas W. Dodd and Stanley Welch, for appellant. Ballinger, Matt & Terry, F. E. Macmanus, and Stayton & Kleberg, for appellee.

MALTBIE, J.

On the 1st day of December, 1881, the appellee, Malcolm G. Douglas, was, and had been for about five weeks, an employe of appellant, the Texas Mexican Railway Company, his duties being to do whatever was required of him around its shops and yards at Corpus Christi. That day he received a personal injury while in the performance of his duties under these circumstances. One Sutcliffe appeared at the yards of appellant, for the first time, on that morning; and was seen by appellee giving orders to the hands in the shops. Soon afterwards he ordered appellee to assist in conveying engine No. 24 from the yard to the round-house. Under direction of Sutcliffe, the tender of engine No. 2 was fastened by a chain to No. 24, the purpose being that No. 2 should draw No. 24 after her. Before 2 started, Sutcliffe ordered appellee, who was standing on its tender, to get a block, to serve as a fender to break the force of the collision of 2 and 24, when No. 2 should be stopped; and for that purpose one William Corlin, an engineer in the employ of appellant, handed appellee a piece of railroad tie, about four feet long and four inches square. Appellee placed the piece of tie on the chain, resting against the draw-head of No. 2, holding it in one hand in nearly a vertical position, holding on to the projection of the tender above him with the other hand, and asked Sutcliffe, who was also standing on the tender, if that would do, appellee being inexperienced in such matters, and Sutcliffe replied that it would. Sutcliffe then caused No. 2, that was moving forward, drawing 24 after it, to stop; 24 did not stop, but moved on by the momentum already acquired, and, its deck-plate being higher than the draw-head of No. 2, struck the block with such force as caused it, to use the language of a witness, to strike appellant's thigh "at an incline," shivering the bone and inflicting a permanent injury. The cause of the accident seems to have been the irregularity of the height of the deck-plate of No. 24, and the draw-head of No. 2.

The first question raised is as to the legality of the term of the court at which the judgment in this case was rendered. Article 1128, Rev. St., provides that if the district judge fails to appear at the time fixed by law for holding the court, and should no election of a special judge be had, the sheriff (or constable of the county in the absence of the sheriff) shall adjourn the court from day to day for three days, and, if the judge shall not appear on the morning of the fourth day, and should no special judge have been elected, the sheriff or constable shall adjourn the court until the next regular term thereof. A special judge was elected on the morning of the fourth day; but the regular judge appeared at 11:30 o'clock A. M. of that day, assumed the function of judge, and proceeded to hold the term of the court. It is not necessary, in this case, to determine whether the special judge was legally elected; the sheriff not having adjourned the court on the fourth day, the judge of the district having taken charge before 12 o'clock M. of that day he did appear, in our opinion, on the morning of the fourth day, and both the letter and spirit of the statute was complied with. The common acceptation of the word "morning" is any time from sunrise till 12 o'clock; and it should be so construed. Rev. St. art. 3138.

The appellee, while being examined as a witness, was asked the question: "What was, and is now, the condition of your mind as affected by, and in relation to, your injury?" and answered over the objection of appellant, among other things, "I have always, since my injury, had feelings of fear regarding the future of my wife and family." The question and answer are assigned as error. It is said liability for actual damages extends to "mental suffering, naturally resulting from the injury or wrong, whether such suffering be apprehension and anxiety from its depressing effect, or induced by its alarming character." 3 Suth. Dam. 711. But we think the mental suffering arising from apprehension, as to the future of one's family, is not a natural result of the injury, but depends upon the...