Texas Midland R. R. v. Simmons

• Decision Date: 04 January 1913
• Citation: 152 S.W. 1106
• Parties: TEXAS MIDLAND R. R. v. SIMMONS.
• Court: Texas Court of Appeals

152 S.W. 1106

TEXAS MIDLAND R. R. v. SIMMONS.

Court of Civil Appeals of Texas. Dallas.

January 4, 1913.

Rehearing Denied January 25, 1913.

Appeal from District Court, Hunt County; R. L. Porter, Judge.

Action by C. A. Simmons against the Texas Midland Railroad. From judgment for plaintiff, defendant appeals. Affirmed.

Henry C. Coke, of Dallas, Dinsmore, McMahan & Dinsmore, of Greenville, and S. W. Marshall, of Dallas, for appellant. Yates, Sherrill & Starnes, of Greenville, for appellee.

TALBOT, J.

The appellee, Mrs. C. A. Simmons, on or about the 3d day of September, 1911, was a passenger on appellant's train going from Greenville, Tex., to Cash, Tex. When the train arrived at Cash, the appellant used a box or stool placed upon the ground for passengers to step upon in alighting from the train. Mrs. Simmons, in alighting from the train, stepped on the box, and it tipped or turned over, throwing her to the ground and seriously injuring her. The box was caused to tip or turn over because of the negligence of the appellant in having an improper or unsuitable box for passengers to alight on, or because the conductor of the train, just immediately before or at the time Mrs. Simmons was in the act of stepping on the box, negligently kicked or otherwise moved the box too far under the steps of the car from which she was alighting, thereby causing her foot to catch on the outer edge of the box. To recover damages for the injuries sustained, this suit was brought, and the defenses set up were (1) a general denial; (2) contributory negligence on the part of appellee in that she negligently stepped on the edge of the box as she alighted from the train, and in that the heel, or a part of the heel of her shoe, was sprung and came off as she stepped on the box and caused her to stumble and fall. The trial resulted in a verdict and judgment for appellee, and the appellant appealed.

The first assignment of error complains of the admission of certain testimony given by the witness Dr. Joe Becton. It appears from the bill of exception that, in answer to a question propounded by the appellee's counsel, this witness said: "Usually a shock will do one of two things in four to six hours—the patient will either succumb to the shock or shows signs of being better. There is one symptom I did not mention a while ago; at the time I was called she had paralysis of the bladder, we had to draw her water off, and now when she gets on her feet—" At this juncture, and before the sentence was completed, objection was made to the statement of the witness to the effect that, at the time he was called, Mrs. Simmons had paralysis of the bladder and he had drawn her water off, upon the ground that no such injury had been alleged, and the objection was overruled. We think there was no material error committed in this action of the court. In this connection, and before the court ruled, the witness stated, "The function of the kidney is to separate the water from the blood—that is, performs its function in the body—it is one of nature's ways of getting rid of the refuse blood, and it delivers it into the bladder." The witness further stated, "I didn't say injury to the bladder, but what is called reflex action in this kidney. In explanation of what I mean by reflex action, if you have nothing to move the bowels, you would have a headache and that is called reflex action, but you would not have headache from neuralgia in the head; reflex action is where the trouble is one place and pain another; the nerves control everything, and, when the kidneys start to dripping water down, a little nerve that runs down this ureter gives it impulse to trickle water down; if anything happens to that, that interferes with the bladder, and when the bladder gets ready to empty, and the bladder begins to squeeze this way [indicating], and nature opens a little throttle and lets the water out; if for any reason this nerve impulse is interfered with, the bladder will close and this desire to empty itself will not go on, and then after so long a time the bladder becomes paralyzed—not diseased—but paralyzed from lack of nerve impulse; when she gets up, water trickles from her at this time, and this morning she was all wet down there when I examined her; it is not complete paralysis, but partial paralysis. This condition of the urine I testified about is due to injury to the kidney." There was no direct allegation of injury to the bladder. Appellee alleged, among other things, that she was injured in her spinal column, in the region of her kidneys; that "her left kidney was injured in its substance, lining, ligaments, and attachments and was displaced * * * and does not perform its proper functions; and that, by reason of the injuries * * * to her back, side, and kidney, p...