Weatherhead v. Vavithis

• Court: Texas Court of Appeals
• Writing for the Court: Walker
• Citation: Weatherhead v. Vavithis, 135 S.W.2d 1008 (Tex. App. 1939)
• Decision Date: 01 December 1939
• Docket Number: No. 3557.,3557.
• Parties: WEATHERHEAD et al. v. VAVITHIS.

135 S.W.2d 1008

WEATHERHEAD et al. v. VAVITHIS.

No. 3557.

Court of Civil Appeals of Texas. Beaumont.

December 1, 1939.

Rehearing Denied January 1, 1940.

Error from District Court, Jefferson County; R. L. Murray, Judge.

Action by Savas Vavithis against E. F. Weatherhead and others for injuries sustained in a collision while riding as a passenger in a taxicab operated by defendant. To review a judgment for the plaintiff, defendants bring error.

Affirmed.

Battaile & Burr, of Houston, for plaintiffs in error.

S. C. Lipscomb and A. D. Lipscomb, both of Beaumont, for defendant in error.

WALKER, Chief Justice.

On the 11th day of July, 1937, appellee, Savas Vavithis, riding as a passenger in a taxicab owned and operated by appellants, E. F. Weatherhead and J. O. Baggett, was injured in a collision in the City of Beaumont between appellants' taxicab and an automobile owned and operated by a third party. This suit was filed by appellee against appellants for damages for the injuries suffered by him in the collision. Appellants have duly prosecuted their appeal to this court from the judgment on the verdict of the jury for the $1,500, entered against them in favor of appellee.

We overrule appellants' assignments that the evidence did raise and was insufficient to support the jury's finding on the issue of the reasonable present cash value of appellee's diminished earning capacity, which resulted from his injury. The following statement supports the jury's verdict on this issue: Plaintiff is a Greek manual laborer, forty-three years of age, with no prospect shown for any other class of employment. For nine years he has been employed by one company as a pump man on an American tanker. He has his domicile in the State of New York. The pumps which he operates are down in the hold of the vessel forty feet below deck, and his job requires hourly trips up and down the forty-foot perpendicular on the ladders between deck and hold. He must operate the pumps and valves in the hold, and care for and operate the pipes and machinery and valves on deck, requiring hard physical labor with freedom of muscular activity in his arms, both for pushing and pulling. He received his injury due to the fault of defendants, July 11, 1937. The trial was had in October, 1938. At that time he was still suffering weakness, inconvenience in performance of his work, and some pain from the injury, according to his own testimony. He had recovered use of the muscles used in pulling, but still had disability, weakness and pain in pushing, not being able to exert the power in pushing a valve, or in any other kind of work involving pushing with his arm on the injured side, that he had before the injury. He had earned in the past $110 a month, with food and lodging on the vessel and an allowance of $3.25 a day for expenses ashore while the vessel was tied up. He plead his earnings, with these incidentals, as the equivalent of $150 a month.

After his injury, and after about nine years of service with the same company, his pay was increased $5 a month. There was medical testimony to the effect that his restoration should have been complete within one year from the date of the injury. But Dr. English testified that appellee might, until the bone gets set, "say six or eight months or a year," have to favor that arm, and that "of course he might have a little neuritis following," "an inflammatory condition of the nerve, the callous thrown out on the nerve"; that it would be hard to say how long it would cause pain and discomfort, depending on whether appellee had any nerve involved in the callous formation on the bone. Appellee testified:

"And after the accident then I can't sleep on my right side and if it happen at any time in my sleep I turn on my right side and if I don't know because I am asleep, then my right hand there is almost paralyzed and it takes a few minutes before it comes back and then another thing, if I put pressure up against and push with it I can't do it. * * * Any time I got to open the valves, I got all the machinery there to take care of and oil the pumps there and got to work the valves back and forth. Well, if I get hold of my...