Texas & P. Ry. Co. v. Goldman

• Citation: 51 S.W. 275
• Parties: TEXAS & P. RY. CO. v. GOLDMAN.
• Decision Date: 26 April 1899
• Court: Court of Appeals of Texas

51 S.W. 275

TEXAS & P. RY. CO. v. GOLDMAN.

Court of Civil Appeals of Texas.

April 26, 1899.

Appeal from district court, Kaufman county; J. E. Dillard, Judge.

Action by H. L. Goldman against the Texas & Pacific Railway Company. From a judgment in favor of plaintiff, defendant appealed. Reversed.

M. H. Gossett, for appellant. T. M. Brooks and Wm. H. Allen, for appellee.

FLY, J.

This suit was instituted by appellee to recover $2,000 damages for injuries received while alighting from the train of appellant at Lawrence, Tex., the ground of negligence being that appellant did not stop its train a sufficient time at Lawrence for passengers to safely alight therefrom. The cause was tried by jury, and resulted in a verdict and judgment for appellee for $540.65.

The question raised by assignment as to improper conduct of the jury need not be considered, as it is not likely to occur on another trial, and comment on the question of sufficiency of the evidence would not be proper.

The first assignment of error complains of the charge which authorized the recovery of damages in the future for mental suffering, the ground of objection being that appellee did not sue for mental suffering in the future, but limited his cause of action for mental suffering to 10 days immediately following the infliction of the injury. The petition alleged that "plaintiff was forced to and did go to bed, and was confined to his bed for the space of ten days, and suffered the most excruciating pain and mental anguish, and for ten days thereafter was wholly unable to follow his usual occupation, or to do any manual labor whatever, and he has ever since suffered pain therefrom, and now suffers pain, and has been seriously and permanently injured, and has been forced to procure medicines and medical attention to the amount of $100, and that said injuries aforesaid will shorten his life, and tend to shorten it, and render him wholly unable hereafter to labor and earn money as well as he would if said injuries had not been inflicted." We think the charge was justified by the allegations. Railway Co. v. Silliphant, 70 Tex. 623, 8 S. W. 673. There is no reason, however, why the pleadings should not be made so full as to remove such questions on another trial.

Appellee testified, when first placed on the stand, that he had never before been hurt, except by a horse, when a boy; and Mrs. Kirtland, the agent of and witness for appellant, swore that directly after the accident appellee had said that it was the second time he had been hurt by appellant, and that he intended to institute suit. Appellee was recalled, and over the objection of appellant was permitted to testify "that the other accident he had reference to when talking to Mrs. Kirtland was in 1886; the ties spread, and the coach he...