Dallas Ry. & Terminal Co. v. Farnsworth

YOUNG, Justice. The suit was for damages growing out of personal injuries sustained by Mrs. Farnsworth when struck by the rear overhang of one of defendant’s street cars as it turned to the left at an intersection. Upon a trial and jury answers to special issues, judgment was rendered for plaintiff (appellee) in the sum of $12,518, with consequence of this appeal. Appellee had been a passenger on defendant’s vehicle, having alighted therefrom just before receiving the alleged injuries. The material elements of plaintiff’s cause of action and 'the company defenses thereto are sufficiently reflected in the following summary of jury questions and answers: (1) That the operator of the street car failed to give Mrs. Farnsworth an opportunity to get beyond the overhang of said street car before starting the same (around the intersection), which was negligence and a proximate cause of injuries; (2) that the street car operator failed to keep a proper lookout for Mrs. Farnsworth, which was likewise a proximate cause of injury; (3) that the street car operator did not fail to give warning of his intention to start the street car; (4) that on the occasion in question Mrs. Farnsworth did not fail to keep a propér lookout for her own safety; (5) that Mrs. Farnsworth failed to listen for the movement of the street car, which was not negligence on her part; (6) that Mrs. Farnsworth failed to walk to a position beyond the overhang of the street car, which was not negligence; (7) failure of Mrs. Farnsworth to step out of the way of the street car overhang at said time and place was not negligence; (8) no negligence was involved in Mrs. Farnsworth’s being at the place where she was when struck by the street car; (9) the automobile traffic moving eastwardly on Elm Street just west of St-Paul Street at the time was not the sole proximate cause of injuries to plaintiff;, and (10) nor were such injuries the result of an unavoidable accident. Appellant’s points on appeal may be summed up in the following: The trial! court’s error (1) in overruling defendant’s-, motion for instructed verdict and for judgment notwithstanding the verdict, and in [983] thereby holding that there was some negligence on part of the street car operator which proximately caused plaintiff’s injuries; (2) in failing to rule that the evb dence was insufficient to constitute negligence on part of said street car driver, whereby plaintiff sustained injuries; (3) in refusing to hold that Mrs. Farnsworth was contributorily negligent as a matter of law; (4) in failing to set aside the jury verdict of $12,518 as excessive; (5) error-in the court’s admission of evidence in various particulars, also charging improper jury argument on part of counsel for ap-pellee. The locale of the occurrence was at intersection of Elm Street (running east-wardly) and St. Paul, where defendant’s tracks turn to the left and proceed north on 'the latter street. Also, on Elm Street adjacent to south street-car track and intersection, the City maintains a safety zone for use of street-car patrons, marked with a row of metal buttons, each one foot in diameter, three feet apart, and extending along some 48 feet to the west. Within and overlapping these safety zone buttons to the east was another line of small brass buttons installed by defendant to mark the extreme outer sweep of its cars when making the left turn; all traffic of both streets being controlled by safety lights. Under the first three points appellant company urges insufficiency of evidence as a matter of law to show any negligence on part of its operator proximately causing the injuries complained of; also arguing that plaintiff, in standing within reach of the street car overhang after alighting, was conclusively guilty of contributory negligence. These points require a determination of the legal sufficiency of all evidence tending to support the findings so challenged, viz.: (Issue 1) Failure of car operator to give plaintiff an opportunity to get beyond overswing of car before starting it; (Issue 4) his 'failure to keep a proper lookout for plaintiff; and (Issues 14, 15) that the failure of Mrs. Farnsworth to walk to a position beyond the street car overhang was not negligence. Plaintiff, aged 51 at time of accident, on December 13, 1946, was employed as proprietor of a restaurant at Sears Roebuck’s South Lamar -store. ;She had then resided in Dallas some three years, having previously lived in Milwaukee and Saint Paul. Her testimony in brief was that she had used the same car line (Myrtle-Belmont) in going to and from work, always leaving it at Main and Lamar, never having ridden as far up town as Élm and St. Paul; was therefore not familiar with the situation at place of accident, nor that the tracks there turned left and to the north; that she became a passenger on date of injury along in afternoon, boarding the car on South Lamar, together with afflicted adult daughter and grandson, aged three, intending to visit a place in vicinity of Titche-Goettinger’s on upper Main Street; that when the car reached Elm and St. Paul she proceeded to get off in safety zone at the front exit behind a number of other passengers; that the signal light changed to red in the direction she was facing (south) just as she alighted, traffic blocking 'her movement to the south curb of Elm Street where she had intended to go; that after stepping off, holding the child by one hand, she had no time to take any further step when struck by the rear overhang of the street car. P. K. Rogers, who was then a city traffic officer at the intersection, saw the street car strike Mrs. Farnsworth, stating that it was moving rapidly; that she was standing at approximately the most easterly safety zone button and two feet from it with a group of people there in the safety zone; that the daughter was the last one off car; that the south traffic light was red, with a lot of traffic moving east. To the question “From the time you saw Mrs. Farnsworth * * *. until the time the street car struck her, was there any time for you to warn her, or anything of that sort?” he answered “No, sir, there was no time.” “Q. Was it kind of like that (snapping fingers) ? ” His answer was: “Yes, sir, fast”; estimating on, another answer that the time was about ten seconds. He further testified that some one was Standing in front of plaintiff at the moment, where she couldn’t move ahead because of the traffic; - there was some one to her right and a little forward; indicating'from his observation of plaintiff’s pre [984] dicament that' if she .had moved, either;to. the left and'outside the safety zone, or to. the right, she would still have been within swing of the car. Plaintiff’s witness Roy Jackson, in' an' automobile parked '' directly behind - the street car, testified that it started up rather abruptly; that when he first saw plaintiff it was “pretty crowded right in front of her”; stating on crq'ss-examinafiori that' plaintiff was ten ' feet back of the front door of -street car when hit; on redirect-examination, that he did not know whether she moyed after stepping from the car, not having seen her until she was hit. 0.‘ W. Hanna, operator of the car in question, testified that his first'knowledge of the accident was on return trip downtown when so advised by the -supervisor; remembering little about the mishap at Elm and St. Paul save -that his speed on rounding the curve was one to two miles per 'hour, not recalling whether he rang the bell on starting up; His'eyes' being focused to front and left when making the turn; and that hi-s last ‘ look to the right' before starting was when closing front door of car and seeing ‘that traffic was clear. Here it may be noted that, in so' far as the two rows of street markers overlapped (buttons of City safety zone and inside company buttons), the narrowest point of street car clearance -was at .the .extreme 1 east button of-the safety .zone- — a distance of 2.2 feet. The- company car was '-some 50 feet in length. ' : When a passenger is discharged from a street car at -a regular stopping-place, he i-s entitled to have a reasonable opportunity after leaving the car to get beyond the, danger of its movement and ■operation. Wittkower v. Dallas Ry. & Terminal Co., Tex.Civ.App., 73 S.W.2d 867, writ refused; Trail v. Tulsa Street R. Co., 97 Okl. 19, 222 P. 950; White v. Connecticut Col, 88 Conn. 614, 92 A. 411, L.R.A.1915C, 609. . The rule1, would appear particularly applicable, to the instant situation, which has been the locus of previous appeal. See Young v. Dallas Railway & Terminal Co., Tex.Civ.App., 136 S.W.2d 915; Carpenter v. Dallas Railway & Terminal Co., Tex. Civ.App., 163 S.W.2d 703. Plaintiff testified that -she did not know of the left turn; other testimony tending to show that she was momentarily prevented from moving out of the danger zone. It was the .motorman’s duty to keep a proper lookout for passengers discharged into said zone before starting his car, which duty Hanna claims to have .performed, and that before starting-up “There was no one--at the point of my front door within the overswing zone.” The jury has simply found defendant’s operator guilty of an insufficient lookout under the circumstances-; the foregoing facts raising issue of negligence on part of oar driver and plaintiff alike. The cases cited by appellant are in no wise in conflict with above conclusion; having r'eferencé to the general rule o-f nonliability for injuries'resulting from a street car overhang after the passenger has been afforded- -a reasonable opportunity to' move to a place of safety.-' Thus, in Steinburg v. Milwaukee Electric Ry. & Light Co., 22 Wis. 37, 266 N.W. 793, 795, the court said: “-After the deceased was safely off the car and afforded the reasonable opportunity to walk to a place of safety, the motorman-,' who was in sole charge of the ■ car, had::a right to assume that the deceased would withdraw far enough ' to avoid being struck by t-he rear end o-f'the car as it swung around-the curve .in.' the usual manner-.-”" In El Paso Electric Co. v. Ludlow, Tex.Civ.App., 291 S.W. 619, 621, the claimant, alighting from a street ca-r, had taken several steps and knew of the turn whon struck by the overswing; being -held' under the circumstances, no longer a passenger and negligent' ás a matter of law. The court, adhering to a well-established' rule, held that “in view of' the well known fact that in rounding a curve the- rear end -of a street car will swing beyond the track'and overlap the street to a greater extent than the, front; the; motorman-may-rightfully assume that an adult person standing near' the track, who is apparently' able to see, hear,- arid move, and -having notice of the approach of a street car and óf the' 'existence of the,-curve, will draw - back, far enough ' to avoid being struck by the- car' as it swings around the. cufve'-in- the usual arid expect [985] ed manner, and therefore no legal duty is imposed upon the motorman to warn, such person against the possible danger of a collision with the rear, because of the' swing, if he remains in the same position; 25 R.C.L. p. 1245, par. 108, and the cases' there cited.” It will be observed that the doctrine just quoted (holding as a matter of law that intending or discharged passengers must conclusively take notice of a street car overhang)' has been limited by Texas decisions to persons “having notice of the approach of the car and of the existence of the overhang.” Appellant’s complaint of excessiyeness of verdict requires a résumé of testimony concerning nature, extent, and duration of injuries claimed by appellee. From her own narrative,, she was knocked to the pavement and temporarily stunned by the impact, carried by ambulance, to Parkland Hospital; was dazed, confused, and in pain, with hurting about head, neck, and right shoulder; in hospital five days, treated by her family physician, Dr. Buehler; after going home was in bed part time, checking back on job January 2, 1947, still suffering from dizzy headaches; that she was forced to return to hospital latter part of January on account of the injury, there about four days, going back on job February 15, continuing to have visual disturbance, dizzy spells and sense of confusion; that she got no better and in October had a nervous breakdown, going to "country a week, returning to job, but holding it with difficulty on account of inability to concentrate, continual nagging headaches, dizziness, speech block, ■and an emotional instability; that she could see no improvement in conditions, and constantly worried about herself. Doctor 'and hospital bills to date of trial were in excess of $500 and at time of injury visual evidence thereof was knot on back of head, with swelling there and to. right hip. : Dr. Buehler, an experienced and reputable physician, testified to plaintiff’s good health before injury, though slightly overweight ; that when- he first treated her at Parkland on' day of injury she was complaining of severe pain and had head bruise; that she continued to complain after leaving hospital .and during-.1947-of severe headaches, 'various difficulties concerning ' vision and speaking, being subject to emotional, upsets.. and inability to concentrate;- such condition persisting without noticeable improvement; that while X-ray pictures showed no skull fracture, a blow 'to. the head, without fracture, might produce damage to the brain resulting in the trouble of- which appellee complained. He said that persistent pain near the brain was calculated to cause trouble; in his opinion her complaints,though subjective, were .not those of a malingerer,, but real, she in fact actually suffering from severe headaches, dizziness, and vertigo. On her ‘ second trip to hospital (January 1947) a spinal puncture was performed with result normal, Dr. Bueh-ler’s letter of release stating that the diagnosis was a “possible muscular inflammation due to-a blow.” Plaintiff was also, treated by an orthopedic specialist (Dr.Knight) and a phsychiatrist (Dr. Pearcy) who were not called to testify; Dr. Shelton, examining her,-prior to the trial, finding no organic basis for the head complaints. : Mrs.1 Farnsworth was employed by Interstate Company, supervising operation of restaurants in Sears Roebuck ■ Stores, training help, -receiving salary of $250 .per month at time of injury. She was sent to oversee operation- of the Houston Store in April 1947,. with added responsibilities and salary increase, of $400 per month; then going to San Antonio and supervising a new installation .and returning to Dallas in same employment at time of trial. She was paid by her employer for all time lost from work since injury. The last medicines prescribed by Dn Buehler (October or November 1947) were sedatives to relieve headache and for nerves. Under the 1 foregoing detail' of disability as a result of injury, even -from standpoint of plaintiff, the amount of recovery is quite large — -too large, we think —but we are referiied to no method' whereby the excess can be reached without some showing of prejudice on part on the jury which wé do not find. Rule 440, Texas Procedure, our authority for remittitur of excessive verdicts, is in the same'-language [986] as old Art. 1862, which "yvas construed at an early date to mean, under -like circumstances (damage 'action and general recovery), that: “In cases of this sort involving elements of damage incapable of accurate measurement in dollars and cents, the field of the jury’s discretion is broad indeed, and a verdict can be disturbed by this court as excessive only when, by its size compared with the injury suffered, it is manifestly the result not of a sound discretion temperately exercised, but of passion and prejudice.” Missouri, K. & T. R. Co. v. Nesbit, 40 Tex.Civ.App. 209, 88 S.W. 891, 893; 3 Tex.Jur., sec. 829 p. 1179. See also Western Union Tel. Co. v. Hicks, Tex.Civ.App., 253 S.W. 565; World Oil Co. v. Hicks, 129 Tex. 297, 103 S.W.2d 962; Texas & N. O. R. Co. v. Haney, Tex.Civ.App., 144 S.W.2d 677. On the other hand, the record is suggestive of a rather careful weighing of evidence by. the jury as applied to the issues,' taken separately. For instance, their answer that the motorman rang his bell before starting car is in conflict- with the latter’s own statement made to the company claim agent. Likewise the jury issue concerning plaintiff’s failure to listen for movements of the car was answered by them in the affirmative. The point must be overruled. The following points complain of the court’s ruling on inadmissibility o'f testimony':' (1) Over objection of counsel', plaintiff was permitted to testify that when she boarded the particular car, seven to ten minutes before the accident, the motorman appeared in a great hurry, “scarcely” allowing passengers to get off “before he started again” at named intermediate stops. The narrated acts of defendant’s' employee were not subject to the' objection made, occurring so near the time'and'place of injury as to be, in practical: effect, a part of the transaction. 17 Tex.Jur. . Res Gestae, sec. 257, p. 614; Houston Oxygen Co. v. Davis, 139 Tex. 1, 161 S.W.2d 474, 140 A.L.R. 868, (2) Appellant’s further', objection concerned, cross-examination by appellee of the motorman relative to a like accid.ent at the same place on same day, holding a newspaper clipping in hand. There was no error in the procedure, the matter of other accidents having been first -injected into the. case by appellant’s counsel on direct examination and being offered “for the purpose of rebutting or impeaching his testimony with reference to nobody getting hit”; and to which limitation, ordered by the court, no’ further objection was made. No error is presented by bill of exception No. 3 complaining of the continuous reference by counsel to plaintiff as a widow with grandchild and afflicted daughter. The court qualifiedly sustained objection thereto, though counsel was within the record on the facts, the statement not appearing unduly repetitious. Likewise the statement made by Mr. Johnson in closing argument appears but as a jocular reply to argument of counsel for appellant. Aside from this the court promptly sustained objection to the matter complained of, thereby removing any probability of injury. Finding no error of a reversible nature in the record, appellant’s points of appeal are accordingly overruled and the judgment in question affirmed.