Weatherford, M. W. & N. W. Ry. Co. v. Smith

• Decision Date: 27 June 1914
• Docket Number: (No. 8007.)
• Citation: 170 S.W. 133
• Court: Texas Court of Appeals
• Parties: WEATHERFORD, M. W. & N. W. RY. CO. v. SMITH.

170 S.W. 133

WEATHERFORD, M. W. & N. W. RY. CO. v. SMITH.

(No. 8007.)

Court of Civil Appeals of Texas. Ft. Worth.

June 27, 1914.

Rehearing Denied October 17, 1914.

Appeal from District Court, Parker County; F. O. McKinzie, Judge.

Action by E. B. Smith against the Weatherford, Mineral Wells & Northwestern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

H. C. Shropshire, of Weatherford, for appellant. Hood & Shadle, of Weatherford, for appellee.

CONNER, C. J.

We adopt the following statement of the nature and result of this case as given by appellant:

"Appellee, E. B. Smith, sued appellant in the district court of Parker county, Tex., on the 10th day of February, A. D. 1913, to recover damages for injuries alleged to have been sustained by him while a passenger on one of appellant's trains en route from Mineral Wells to Weatherford, Tex. Among other things, he alleges that on or about the 11th day of March, A. D. 1912, he boarded said passenger train at Mineral Wells, Tex., about 2 o'clock p. m. of that date; that he went into a coach and took a seat on the south side of the train next to an open window of said coach, said window and sash being up at the time; that he immediately laid his right arm and elbow on said window sill to steady himself while said train was moving and for convenience and comfort; that after said train had run some six miles said window and sash fell with much force, striking his said arm about the point of the elbow, seriously and permanently injuring his arm, as follows: That the bones of said arm at said place were mashed and injured and fractured; that the muscles were mashed and bruised, and said arm was blackened and discolored; that the nerves, tendons, and leaders at said place were mashed, bruised, separated, and mashed into and ruined; that by reason thereof plaintiff had practically lost the use of the said right arm and hand; that he has lost the use, strength, and grip of his right hand; that by reason thereof his right arm and hand are perishing away; that it is cold and had the feeling of a leg or arm spoken of as being asleep; that said arm pains appellee very much and prevents him from sleeping at night; that he has suffered greatly from same both mentally and physically and will continue to so suffer in the future; that the said arm is permanently injured and ruined, and is growing worse, and will continue to grow worse, and the same is practically useless to plaintiff; that the said fall of said window and sash at said time and place was due to and caused by the imperfect condition of the said window fasteners and by the way and manner in which same were fastened and constructed; that the said fastenings of said window at said time were imperfect and wholly insufficient for said purpose and were dangerous; that they were improperly constructed, were worn, insufficient, out of order, and any unusual move, creak, or jerk of the train would cause said window and sash to fall; that said window and sash and the fastenings at said time were not secure and were dangerous; a more detailed description of said imperfect condition of said window and sash and fastenings cannot be given by plaintiff; all of which was known to defendant before his said arm was hit; that appellee sustained damages in the sum of $15,000.

"Thereafter in due time appellant filed its answer in said court, in which it denied each and singular all the allegations set up in appellee's petition, and alleged that plaintiff was guilty of contributory negligence in voluntarily and unnecessarily taking a seat by said open window in the manner by him alleged in detail; and that he was further guilty of negligence which contributed to his injury in that he failed, neglected, and refused to have his arm and injuries properly treated by a competent physician until many months after said injuries occurred and until said injuries thereby were rendered more serious than they otherwise would have been, etc.

"The case was tried before a jury on the 28th day of October, 1913, and said jury returned a verdict for appellee in the sum of $500.

"Thereafter, on the 19th day of November, 1913, appellant presented to said court its motion for a new trial, which motion was by the court overruled, and notice of appeal within terms of law was then and there given by appellant.

"Thereafter, on the 11th day of December, 1913, appellant filed with the clerk of said court its appeal bond within terms of law, and this case is now presented to this honorable court for revision and consideration upon the following assignments of error."

The first five assignments of error question the action of the court in giving and refusing charges. But these assignments cannot be considered, as was conceded in behalf of appellant on the submission, for the reason that the proper objections and exceptions...