Gulf, Colorado & Santa Fe Railway Co. v. Pendery

TARLTON, Chief Justice. Mrs. Etta F. Pendery, the wife of the appellee, E. C. Pendery, was on the 10th day of April, 1889, a passenger, with others, on a street car of the Fort Worth Street Railway Co. This car collided with a train of the appellant, the G. C. & S. F. Railway Co., at a crossing on Belknap Street, in the city of Fort Worth. As a result of this collision, Mrs. Pendery was seriously and painfully injured. The inj ury sustained by her is to be ascribed to the negligence of the employes of the appellant, the G. C. & S. F. Railway Co., operating its train on that occasion. The injuries inflicted upon Mrs. Pendery were of such a character as to justify the assessment of damages awarded by the verdict of the jury in the sum of 87875. Conclusions of Law.—We dispose as follows of the questions presented in the appellant’s brief: 1. Under the authority of Railway v. Brown, 11 Texas Civ. App., 503, 33 S. W. Rep., 146, decided by this court and approved by the Supreme Court, the contention of the appellant first urged under its *64 twenty-first, twenty-second and twenty-third assignments of error, to the effect that the court erred in treating a violation of the city ordinance regulating the speed of trains as negligence per se, must be overruled. We do not think that the charges complained of in these assignments merit the criticism of the appellant, that the jury would find for the plaintiff on the mere existence of negligence, without reference to the question whether injury proximately resulted therefrom. Railway v. Nelson, 9 Texas Civ. App., 156, 29 S. W. Rep., 78. 2. With sufficient accuracy the court in its general charge defined negligence as follows: “Negligence, as used in this charge, means a failure to exercise such caution and care as a reasonably prudent and cautious person would usually exercise with reference to a similar matter under similar circumstances.” The court then instructed the jury, that even though guilty of negligence, the defendant would not be liable unless the injury complained of was the direct and proximate result of the negligence. Proceeding, the charge reads as follows: “If you (the jury) believe from the evidence that the agents or servants of the defendant the Gulf, Colorado and Santa Fe Railway Co. in charge of and in operating the train which it is alleged collided with the street car upon which plaintiff’s wife was a passenger in approaching the crossing, of the said street railway over which said street car was being operated, failed to keep a proper lookout for cars or other vehicles which might be approaching the crossing, and that the said agents or servants were guilty of negligence in not keeping a better lookout, and in not exercising more caution and care than they did at the time of said collision * * * and if you further believe from the evidence that the collision with said street car was due to and resulted from such negligence on the part of such agents or servants of said defendant, the Gulf, Colorado and Santa Fe Railway Co., and that the collision would not have occurred but for such negligence on the part of said employes; and if you further believe from the evidence that the plaintiff’s wife was injured by such collision, then it will be your duty to find for the plaintiff against the Gulf, Colorado and Santa Fe Railway Co. * * *” Reading together these several items or clauses of the charge, we interpret the.instruction as meaning—and the jury must have so understood it—that the defendant would only be liable for the failure to keep a proper lookout in the event that its agents and employes failed to keep such a lookout as a reasonably prudent and cautious person would have exercised with reference to a similar matter under similar circumstances. This, we think, was a proper test of the requisite diligence. Railway v. Shieder, 30 S. W. Rep., 907. Without detailing them, we think that the facts and circumstances in evidence would justify an inference that the defendant’s agents and employes failed to keep a proper lookout for cars and other vehicles that might be approaching the crossing, and that the pleadings of the plaintiff justified, with the evidence, the submission of such an issue. Thus, as stated oh page 2 of the appellant’s brief, the plaintiff alleged “that *65 the agents and servants then and there in charge of defendant G. C. & S. F. Ry. Co.’s train negligently and carelessly failed to keep a proper lookout for said street car on said street.” 3. In Railway v. Higbee, 26 S. W. Rep., 737, a companion to the present case, decided by this court and approved by the Supreme Court, special charge Ro. 12 requested by the* defendant upon a similar state of facts, was condemned by us. We adhere to the conclusion there announced, and overrule the eleventh assignment of error, complaining of the refusal of this instruction. 4. The plaintiff E. C. Pendery, without objection on the part of the defendant, testified as follows: “My wife is in such a condition that she cannot receive the approaches of myself as her husband in the generative relation without pain, and always has been since the time of the accident to the present time.” The effect of this testimony the defendant sought to avoid by submitting to the court special charges Ros. 2 and 4, the refusal of which is complained of in the third and fourth assignments of error. These charges were to the effect that the jury, in assessing the plaintiff’s damage, would not take into consideration any evidence of mental or physical pain experienced by the wife during sexual intercourse with her husband. It is insisted that the court erred in refusing these special instructions, upon the proposition that the damages thus indicated are not the necessary consequences of the injury, and should not have been submitted to the jury in the absence of special allegations. The plaintiff’s petition alleging injury is as follows: “Wounding and bruising plaintiff’s said wife in the pit of her stomach and in her back, then and there causing her great pain and suffering, and serious internal and permanent injuries, and causing her to suffer in both body and mind, and then and there damaging plaintiff in the sum of $15,000.” The testimony of physicians, witnesses for the plaintiff, especially that of Dr. Howard, as set out on pages 28 and 29 of the appellee’s brief, is to the effect that one of the “serious internal and permanent injuries” inflicted upon the plaintiff’s wife was the displacement or prolapsus of the right ovary, and that as a result of this condition of the ovary sexual intercourse would be very painful to the woman. It thus appears that the testimony of the husband which the defendant thus indirectly sought to exclude from the consideration of the jury, was within the scope both of the pleadings and of the evidence, which tended, as we have shown, to indicate that the pain testified about was the natural and necessary consequence of the injury inflicted. Ro exception was taken to the pleading on account of its general character. If the defendant had desired to be advised of the special character of the “serious internal and permanent injuries” complained of, we think it should have addressed a special exception to the petition calling for specific information in that connection. In awarding compensation for physical and mental suffering, the court confined the jury to such as was experienced by the wife at the time of the accident and at a time *66 prior to the filing of the amended petition, permitting the consideration of evidence with reference to snch suffering since that day solely for the purpose of determining the permanent character of the inj uries complained of. We therefore conclude upon this assignment, that as no objection was urged by the defendant to the evidence referred to, and as its admission comes within the scope of the pleading, not excepted to; and as there was testimony tending to show that the character of pain and suffering in question was the natural and necessary result of the serious internal injury already described, the question as here presented assumes a different form, and is to be distinguished from that considered in Campbell v. Cook, 86 Texas, 630, relied upon by the appellant in this connection. 5. Mrs. Pendery having testified that the injuries sued for in this case affected her with regard to being awakened at night instantly, was interrogated .as follows by the plaintiff’s attorney: “State how it affects you t« be awakened nights instantly;” to which she replied: “I feel just exhausted and worn out.” In admitting this testimony the court overruled the defendant’s objection to the effect that it is not responsive to the question, that it is irrelevant and immaterial, that there is no pleading supporting it, and that it does not tend to prove any damage or the extent of her injury. The testimony of Dr. ICellar, a witness for the plaintiff, was to the effect that Mrs. Pendery was the victim of a very nervous condition called neurasthenia, and that according to medical science this condition was the result of the injury in question. We think that the objections urged were properly overruled. The evidence of the physician would justify the inference thát the nervous condition disclosed by the evidence objected to was a necessary consequence of the injury complained of. 6. The restrictive character of the court’s charge already adverted to precluded the jury, as we think, from awarding the assessment of damages on account of any improbable future permanent injury. Hence the court was not required to grant the fifth and fourteenth special instructions, to the effect that the jury would not consider future permanent injury, in the absence of the probability of such a result. 7. It is believed that the requested instructions 7 and 10, which we find it unnecessary to set out, were properly refused, as argumentative. They unduly emphasize the liability of the company as dependent upon the presumption in the minds of the employes of the defendant as to the conduct of the street car driver. Under the charge of the court, liability could not attach to the defendant in the absence of negligence on its part affirmatively found by the jury. We think the rights of the appellant were thus sufficiently guarded. 8. Upon the authority of Railway v. Botsford, 141 U. S., 250, and upon the force of the reasoning, which commends itself to our approval, of Justice Gray, the organ of the majority of the court in that case, we hold that the court correctly refused the motion of the appellant to ap *67 point physicians charged with the duty of examining into the injuries of the plaintiff’s wife. 9. After the refusal of this motion, counsel for appellant asked the plaintiff and his wife, respectively, whether the witness would “object at this time to an examination of Mrs. Pendery by three physicians appointed by the court.” To the answer to the question the. court sustained an objection by the plaintiff. It explains its action on the ground “that the question was too much in the nature of a banter to the witness while on the stand, or an effort to make a proposition to him for effect which could not then have been acted upon if accepted.” As the court had refused for sufficient reason the motion to compel an examination of the kind suggested, and as the extent of the injury sustained had been testified to by the several physicians, subject to cross-examination, and as the character of these witnesses as experts or for integrity was not questioned, we are not prepared to hold that the action of the court in refusing to entertain this question, involving, as it decided, an attempt to banter or to impose upon the witness, was such as to require a reversal of the judgment. 10. The language of counsel complained of in the seventeenth assignment of error, if unjustified by the record, was used in the opening argument, and as the trial court states in an explanation appended to the bill of exceptions complaining thereof, the defendant had ample opportunity to expose its unjustifiable character, if it existed, and to reply to any fallacy that might be involved in it. 11. When this cause was before us on a previous appeal (Railway v. Pendery, 21 S. W. Rep., 213) we held that the verdict then involved, for $6500, was not excessive. Taking into consideration the additional time that elapsed between the rendition of the verdict in that instance and the trial had in this, involving a probable estimate by the jury in lieu of accumulated interest, the verdict in the present instance is not greatly larger than on the former trial. In any event we think that the testimony of the physicians introduced by the plaintiff, showing serious, painful and permanent injuries, with the dire attendant results, justified the sum awarded by the jury. We affirm the judgment. Affirmed.