text:
    GALVESTON, H. & S. A. RY. CO. v. HARRIS.
    (No. 5373.)

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 13, 1915.
    Rehearing Denied Feb. 10, 1915.)
    1. MASTER AND SERVANT (§ 106) — INJURIES to Servant — Railroads—Defective Handhold — In structions .
    In an action for injuries to a railroad conductor by the pulling out of a handhold, due to the absence of the nut on the upper bolt, a request to charge that the jury might find for defendant, though the nut had been gone for a long time, and its absence could have been discovered by ordinary care, if the default of the owner of the car, which was a foreign one, was the cause of the nut coming off, was properly refused, since ordinary care required proper inspection of all cars handled by defendant, regardless of ownership.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 193-19S; Dec. Dig. § 106.]
    2. Trial (§ 260) — Instructions—Bequest to Charge.
    Where defendant requested several special charges covering the same issue, and the court selected and gave one of them, defendant could not Complain of the refusal to give others which were nmre specific than the one given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    3. Master and Servant (§ 89) — Injuries to Servant — Railroad Conductor — Boarding Train.
    Where a conductor, injured by the pulling out of a defective handhold as he attempted to board a train, was entitled to board any part of the train, it was immaterial that he attempted to board the car, from which he fell, to discover whether unauthorized persons were riding in an emigrant car.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 153-156; Dec. Dig. § 89.]
    4. Evidence (§ 547) — Experts—Probabilities.
    Where plaintiff suffered a mastoid operation after his injury, a physician, having testified as an expert, was properly permitted to testify that the injury “could” have caused a condition necessitating such operation; such evidence not being objectionable as merely speculative and entering the domain of possibilities, as distinguished from reasonable probabilities.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2364; Dec. Dig. § 547.]
    5. Evidence (§ 493) — Physical Condition— Common Knowledge.
    Where plaintiff before his injury was a strong, healthy man, and he sustained serious injury, by which his foot was mangled, causing him to be dazed and, shocked and to suffer intense pain, and, after mortification had set in, his limb was amputated, from which time he declined in health and became a nerve-wrecked invalid, it was within the common knowledge of a layman that such condition could readily produce a variety of troubles, such as urinary trouble, eye troubles, or even mastoid inflammation; and hence a charge that such troubles could not be considered by the jury for lack of evidence that they were due to the original injury was properly refused.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2275-2282; Dec. Dig. § 493.]
    6.Appeal and Error (§ 742) — Exceptions-^-Neoessity.
    An assignment complaining of error in a paragraph of the court’s charge will not be reviewed, where the statement does not show that it was excepted to before the charge was read to the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    7.Damages (§ 210) — Instructions — Construction — “Ie Paid Now.”
    Where the court’s charge, in a personal injury action on the subject of damages, limited the recovery to such sum as would compensate plaintiff for his damages “if paid now,” it could only be interpreted as meaning if paid now in cash, and was not objectionable for failure to so state in terms.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 537, 538; Dec. Dig. § 210.]
    8. Trial (§ 145) — Instructions — Issues — Evidence.
    It was not error to refuse to withdraw from the jury an issue on which there was no evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 328, 341; Dec. Dig. § 145.]
    9. Damages (§ 132) — Excessiveness — Personal Injuries.
    Where plaintiff’s injuries, other than the loss of a foot, were not permanent, though serious, a verdict allowing him $25,000 was excessive to the extent of $5,000.
    Liaa. in oi Cent. Dig. -n or orner cases -- . — see namages, 372-385, 396; Dee. Dig. § 132.]
    Appeal from District Court, Bexar County; B. B. Minor, Judge.
    Action by George E. Harris against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed on condition.
    Baker, Botts, Parker & Garwood, of Houston, and Templeton, Brooks, Napier & Ogden and Ed W. Smith, all of San Antonio, for appellant. Perry J. Lewis, Randolph L. Carter, and H. C. Carter, all of San Antonio, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

       writ of error pending in Supreme Court.

   CARL, J.

Appellee, George E. Harris, sued the Galveston, Harrisburg & San Antonio Railway Company, appellant, for personal injuries sustained about February 5, 1913, by reason of a handhold coming loose or breaking, whereby appellee was precipitated to the ground and one of his feet and the ankle crushed to such an extent that it became necessary to amputate the limb below the knee. The accident occurred at Uvalde.

The petition charges:

“That in said freight train there was being used by the defendant a certain oil tank car, and on the side of said car, and some two or three feet from the end thereof, was an upright piece, and on said upright piece there was a grabiron or handhold fixed perpendicularly upon said upright piece for the purpose of being used by defendant’s employés in the operation of said car and the train; that said grabiron or handhold was defectively and insecurely fastened and in such a condition as to make it dangerous to be used for the purpose for which it was intended; that plaintiff, in the discharge of his duty, sought to get upon said car, and, in order to get upon said car, he toot hold of said grabiron or handhold, and, while using said grabiron or handhold for the purpose for which it was intended, the same gave way, and the plaintiff was thrown. under the moving ears and injured, as hereinafter stated.”

It is pleaded further: That it was unlawful for the defendant to use in its train a car which was not provided with sufficient and secure handholds or grabirons; and, notwithstanding this, the defendant negligently permitted the use of the car which had unsafe, insecure, and defective handholds or grabirons, which negligence is alleged to have directly caused and contributed to the plaintiff’s injury. That the defendant failed to make proper inspection of said handholds or grabirons by competent inspectors, and that, if proper care had been exercised in the matter of inspection, such defect would have been discovered in the handhold or grabirons, and his injury avoided. That the injury happened at night, and appellee did not know of the defective condition of said handhold or grabiron, and he was without fault. In addition to the loss of the limb, he received a severe shock from the fall and internal injuries to his heart and head. That his nervous system received a shock, and that his kidneys and bladder have become affected to such an extent as to make it difficult to retain his urine in a normal way, and that his back was injured, from which he suffers severe pain, also that his right eye is affected and the sight impaired.

Appellant admitted the accident was caused from the handhold or grabiron giving way, but denied that the appellee was in the discharge of his duty when injured, pleaded that the car upon which he was injured was a foreign car, and appellant had made a proper inspection thereof, and was therefore not liable, since such inspection did not disclose the defect, admits “that shortly after the accident happened, and while the train was still at Uvalde, it was found that said handhold or grabiron was disconnected at the upper end, and that the nut from the upper bolt was gone, and that the bolt to which the upper end of said handhold or grabirton had been at-I ached was not bradded, and that the threads of the said bolt (that remained in the car) were rusty,” and pleads that the car, which was east bound, had been inspected at San-derson and Del Rio by competent inspectors and no defect discovered. It is claimed that the defect was latent, and, since the same was not discovered by a proper inspection, appellant was not liable. It is admitted that the injury to the leg is a permanent one, but that the others are is denied, as well as the fact that the other injuries alleged were caused by the fall. And contributory negligence is pleaded.

The verdict of the jury was for $25,000, and this is claimed to be excessive.

The first three assignments deal with the refusal of the court to give requested charges touching the duty of inspection, etc. The first of those charges is:

“The undisputed evidence shows that the car in question was not a car of the Galveston, Harrisburg & San Antonio Railway Company, b.ut was a car of the Texas & New Orleans Railroad Company. You are therefore instructed that the defendant company cannot be held responsible or liable for any defect there may have been in the construction of the handhold in question, or in the material of which the same was constructed, or in the manner of the ap-. plication of the handhold to the car, unless you find from the evidence that the defect therein (if any) was such that same could and would have been discovered and remedied by defendant by proper inspection thereof made after the car came into its line, and before the accident happened; and if you find' that there was such a defect of construction, or of material, or of application, and that same was the cause of the alleged accident, and that same would not have been discovered and remedied by defendant by proper inspection made of the handhold after the car came onto its line, and before the accident happened to plaintiff, then plaintiff is not entitled to recover, and you should return a verdict for the defendant.”

It will be noticed that this charge speaks of defects of construction or of material, while the evidence shows that the nut was off the top bolt which came out. This was the defect complained of in the plaintiff’s pleadings, and this was admitted in the answer. This charge would have authorized the jury to find for appellant, even though the nut may have been gone for a long time, and its absence could have been discovered by the exercise of ordinary care, if the default of the owner of the car was the cause of the nut coming off. The charge assumes that this was a foreign car, but that may be set aside. Ordinary care in inspection is required of all cars, regardless of their ownership. Railway v. Kernan, 78 Tex. 297, 14 S. W. 668, 9 L. R. A. 703, 22 Am. St. Rep. 52; Railway v. White, 76 Tex. 103, 13 S. W. 65, 18 Am. St. Rep. 33; Railway v. Harris, 45 Tex. Civ. App. 542, 101 S. W. 506. In the last-named case, the court says:

“It was the duty of the defendant, as stated in the paragraph of the charg;e complained of, to use ordinary care to furnish a reasonably safe handhold for plaintiff’s use in the performance of his duties, as brakeman, and plaintiff had the right to presume defendant had performed its duty in this respect. It was also the duty of the defendant to make inspection of cars furnished by it to its employés for transportation. As to its responsibility for defects in cars of another company drawn over its road, the Court of Appeals of New York states the law thus: ‘It is not bound to take such cars if they are known to be defective and unsafe. Even if it is not bound to make tests to discover secret defects, and is not responsible for such defects, it is bound to inspect foreign cars just as it would inspect its own cars. It owes the duty of inspection as master, and is at least responsible for the consequences of such defects as would be disclosed or discovered by ordinary inspection. When cars come to it which have defects visible or discoverable by ordinary inspection, it must either remedy such defects or refuse to take such cars; so much, at least, is due from it to its employés.’ ”

And, in addition to the main charge, the court gave appellant’s requested charge No. 5 as follows:

“If you find that the ear in question and the handhold thereon were inspected by defendant’s inspectors at Del Rio and Sanderson as said car was being moved on. its way to Uvalde where the accident to plaintiff happened, and that the inspection made thereof by said inspectors was such as it is usual and customary to make of such cars and handholds, and if you further find that no defect in said handhold was discovered on such inspections, and if you further find that the inspections that were made by defendant of said handhold after the car came onto the line of defendant, and before the accident to plaintiff happened, were such as persons of ordinary prudence engaged in the railway business would have had made thereof, and that the usual and customary method of defendant of inspecting such cars and handholds was such as persons of ordinary prudence, engaged in the railway business, would have adopted and used, then plaintiff is not entitled to recover, and you should return a verdict for the defendant.’’

And the court also gave charge No. 4 at appellant’s request, which reads:

“If you find that there was a defect in the handhold in question, but that same was latent (that is, that same was of a character that was not discoverable by such inspection as persons of ordinary prudence, engaged in the railway business, would have made of said handhold), then plaintiff is not entitled to recover, and you should return a verdict for the defendant.”

These charges which were given covered practically all that was embraced in the other; and where a party asks more than one charge on the same subject, and the court selects and gives one of them, he cannot complain of the refusal of the others. Sullivan v. Fant, 160 S. W. 612; Railway v. Ford, 118 S. W. 1137; City of Greenville v. Branch, 152 S. W. 478. In Railway v. Haney, 94 S. W. 386, the court said:

“Where a party requests more than one special charge covering the same issue, and the court selects and gives the one more general in its terms, the party will not be beard to complain at the refusal to give the others, although the others are more specific in their nature.”

There was no evidence to justify the charge which was. refused, as complained of in the second assignment, because the appellant filed its pleading admitting that the nut was gone and that the bolt was rusty. That the nut may have beeu cracked and fitted loosely, and on that account may have come off, is a mere supposition. No witness says this is a fact. That the nut was gone is admitted, and the question the court was concerned with was whether appellant was negligent in failing to make a proper inspection so as to discover the missing nut.

But as before said, even if the charge had been applicable, the court gave one of the special charges on this subject, presenting the nonliability of the appellant; and, when this is done, it is not error to refuse other ■ special charges on the same subject, as shown by the authorities cited above. The first three assignments are overruled.

The uncontradicted evidence shows that appellee, as conductor of the train, had a right to board any part of the train, and whether it was to discover unauthorized persons riding in the emigrant car would be absolutely immaterial. The fourth and fifth assignments are overruled.

The sixth to the eleventh assignments, both inclusive, are all directed against the admission of Dr. D. Berrey’s testimony as to whether the other alleged injuries of the appellee, aside from the loss of his foot, could be caused by the traumatism or shock from the fall and injury to the limb mentioned. The statement under the first assignment, which is submitted as a proposition, contains about 19 pages of the brief. But we gather that the gist of the trouble lies in the following question by the appellee’s attorney to Dr. Berrey;

“Q. Now, Doctor, answer the question, please, sir, and the question is this: State whether or not traumatism or shock can produce mastoid trouble?”

To which the witness replied:

“Yes, sir; it can.”

The objection made was that the evidence it sought to elicit was too remote, and the opinion called for was speculative and conjectural, and that it was not based on a hypothetical question based upon the evidence in the case. Also that it sought the opinion of the witness as an expert upon the facts of the case as to whether this mastoid trouble was the result of the injury.

The plaintiff had testified that at the time of the injury he could not tell exactly what was the matter with him; that he had so much pain from his leg that he could not tell that anything else was the matter with him until later. In answer to the question, “Well, what other pains or injuries did you develop?” he answered:

“Well, sir, I had pains through my body and through my head. After a few months, I contracted trouble with my head, and it was very painful to me, and hurt me all the time, and I suffered a great deal with it—kind of roaring in my head and ear like—and I think it was in November of this same year, why I had a physician to come out to my house, and he pronounced it mastoid. I went over to the Physicians’ and Surgeons’ Hospital, and I was operated on for mastoid, and I suffered a great deal with that. After this accident, I didn’t feel any trouble with my head for a while. I used to have a roaring sensation in there after I got up and began walking about the bouse. I never felt any inconvenience from it for a while, but when I got up and began walking around, taking exercise, why of course I could feel it.”

Dr. Berrey had testified:

“I believe that anything that would have an effect to cause a run-down, depraved condition of the system generally might produce a condition of that sort, whore the bone (mastoid bone), or any other part of the body (anything, as I say, that would produce a depraved, weakened, run-down condition of the system), might bring about a condition like that.”

The substance of the hypothetical question propounded is:

“A man receives an injury February 5, 1913. He falls by reason of a handhold giving way with him, and his foot is crushed. He is taken to the hospital, and after a week his foot and leg are cut off. He states that at the time he was not conscious of much trouble, or any particular trouble, except the leg at the time, but after that, as soon as the acuteness of the pain in the leg wore away, why, he felt pains in his body, and particularly pains on this side of the head [indicating right side of the head], right back of the ear, where the operation was performed later on. Now, he goes along feeling those — that distress in his head, until he culminates, nine months after, this operation.' Now, under those hypothetical facts, what connection could you make between the accident which caused the falling, or loss of the foot, and the mastoid operation?”

The witness answered as above, and later the court struck out the answer. Then the question first mentioned under this assignment was asked and answered as stated. It seems, from the objections made to tbe hypothetical question and answer given, that appellant objected for the reason that any testimony by the expert connecting or attempting to connect the accident and the condition of appellee would be “too remote, speculative, and conjectural, and entering the domain of possibilities.”' The witness was then asked:

“What do you think of the reasonable probability, under the facts that I have stated, of whether it did produce the trouble?
“In what way, in your judgment, Doctor, would there be any connection between the mastoid trouble, which developed, and the injured condition' which was embraced in my hypothetical question?”

His answer, made after various objections, was:

, “Well, in consequence of the loss of his leg, the man’s habits of life were entirely changed. From an active man he became an invalid; he was confined to his house, became weak, exhausted, and run down; and in consequence of that weakness, exhausted, run-down condition, I believe that he could have developed inflammation in any part of the body — the mastoid or anywhere else — and you could attribute it entirely to the run-down condition of his system generally. Q. Following the injury? A. Following the injury.”

On cross-examination by appellant’s counsel the following:

“Q. Doctor, mastoid trouble is very rarely produced by direct injury, isn’t it? A. Mastoid trouble, Judge, is produced by two causes: traumatism and disease; injury and disease.”

Later the same question was asked, and the witness answered:

“Judge, I answered that. I will answer it again, certainly. I stated there that mastoid inflammation is produced by traumatism and disease. I can leave out disease, if you wish, and say — ”

On objection this answer was struck out as not being responsive to the question. On direct examination Dr. Berrey had testified that traumatism or shock could produce mastoid trouble, and showed how it would or might result from the generally run-down condition and breaking down of the tissues, resulting in pus formations in the mastoid bones, which are a honeycombed formation. When the tissues break down and form pus in these cells, it is very painful, and what is known as. the mastoid operation is performed . by making an incision over the mastoid bone, and chiseling down into the cells, so as to be able to drain them.

The substance, it seems, of the objections to this testimony is that the expert says traumatism or shock could produce the mastoid trouble, and does not show that it probably would do so; in short, that it is a mere possibility, not a probability. The witness does not use the word “probable” in connection with his testimony on this point, but he does say that mastoid trouble could result from shock or traumatism, and then proceeds in detail to show the connection between the traumatism or shock and the resultant effects as pertaining to mastoid trouble and how it occurs. We think that, on the whole, Dr. Berry’s testimony shows that the mastoid trouble did probably result from the injury or traumatism at the time same occurred.

In Railway v. Grenig, 142 S. W. 139, Judge James, speaking for this court, said:

“The twelfth assignment is: ‘The court erred in permitting Dr. B. F. Orr to answer the hypothetical question, in effect, whether or not the fall plaintiff claimed to have received, as described in the question, could have caused the condition in which he found A. Grenig in, and in permitting him to testify, in response to said question, in effect, that such an accident as described in said question could produce said condition, all of which more fully appears in defendant’s bill of exception No. 2, which is referred to and made a part hereof.’ The above assignment does not seek to bring into question the propriety of the hypothetical question, and the only question embodied in the propositions under it, which is germane to the assignment, is whether or not a physician can testify as an expert in answer to such a question that, from the facts stated in his opinion, the condition of the party could or would result from such facts. Such testimony was proper. Railway v. Burnett, 80 Tex. 538, 16 S. W. 320; Railway v. Williams, 26 Tex. Civ. App. 153, 62 S. W. 809; Railway v. Stoy, 44 Tex. Civ. App. 448, 99 S. W. 137.”

We do not believe that “might” is any stronger term than “could,” used in the sense in which that word is here employed.

And in Railway v. Abbott, 146 S. W. 1081, Judge James again says that a physician may testify that a certain kind of accident might cause serious injury to certain organs.

In Block v. Railway, 89 Wis. 371, 61 N. W. 1101, 27 L. R. A. 365, 46 Am. St. Rep. 849, the Supreme Court of Wisconsin said:

“It is also claimed as error that Dr. Becker was permitted to testify that plaintiff’s condition, as he-found it, could have been produced by contact with a wire heavily chai'ged with electricity. The- plaintiff’s theory was that such was the cause of his condition. There was some testimony tending to establish that theory. Surely testimony showing that such a cause was sufficient to produce such a condition tended also to establish that theory. The testimony was both relevant and competent.”

And in Taylor v. Railway, 256 Mo. 191, 165 S. W. 331, it was said:

“It is contended by appellant that the question would have been proper if the expert witness was asked, whether, in his opinion, the injury ‘might or could’ have produced paralysis, but that, by adding the word ‘would’ to the question, it became -improper, and invaded the province of the jury. We are unable to agree with this contention. We see no material distinction between the meaning of ‘would’ and ‘might or could,’ as used in the question.”

Again, in Seckinger v. Philibert, 129 Mo. 590, 31 S. W. 957, it is said:

“One who has practiced as a physician for 25 years is competent to testify as an expert that a blow could have caused pulmonary consumption, though he has already stated, while on the witness stand, that he was not a specialist in the treatment of consumption.”

It seems that the real ground of objection was because the witness was dealing with possibilities and not probabilities, because appellant says, in presenting this matter to this court:

“As to the objections to Dr. Berrey’s testimony : He testified that traumatism or shock can produce mastoid trouble; that anything that would produce a debilitated, run-down, exhausted state of the system would be productive (he thought) of abscesses or things of that kind through the body, and might produce a mastoid abscess; that in consequence of plaintiff’s weakness, exhausted, and run-down condition, the witness believed that he could have developed inflammation in any part of the body — the mastoid or anywhere else — and you could attribute it entirely to the run-down condition of Ms system generally. The objections to this testimony were that the doctor was dealing with possibilities and not with probabilities; that is, that the testimony was speculative and conjectural.”

But it will be recalled that the physician said:

“I do not agree with the statement that trau-matism is rarely the direct cause of mastoid trouble. I think it is not so.”

So it will be seen that the witness declined to assent to the proposition that traumatism rarely causes mastoid trouble. These assignments are overruled.

The twelfth,- thirteenth, and fourteenth assignments complain of the refusal of certain requested special charges. That set forth in the twelfth is as follows:

“The court erred in refusing defendant’s special charge No. 7, which (caption and signature omitted) reads: ‘The evidence is not sufficient to justify a finding that the alleged urinary trouble of which plaintiff complains is due to injuries sustained by him in the said accident; and you are therefore instructed that you cannot in any event allow him anything on account thereof.’ There is no evidence showing or tending to show that plaintiff’s alleged urinary trouble is due to injuries sustained by him in the accident, and the court therefore erred in refusing to so instruct the jury.”

The charges refused, of which complaint is made under these assignments, are substantially the same, except that one deals with urinary trouble, another with mastoid trouble, and the other with eye trouble. Therefore we deal with all together.

At appellant’s request the court gave its special charge No. 10, as follows, formal parts omitted:

“The court having refused defendant’s special charge No. 1 and having prepared and submitted to defendant’s attorneys the main charge to the jury, and defendant comes and requires the following instruction: ‘Gentlemen of the Jury: The evidence is not sufficient to justify a finding that plaintiff’s alleged physical troubles, other than the injury to his leg, are permanent. You are therefore instructed that you cannot find that such other alleged physical troubles are permanent, and that you cannot in any event consider such injuries on the basis of their being permanent.”

The main charge said nothing about the particular physical troubles dealt with in these requested special charges. Then appellant requested the court to charge the jury not to consider specific troubles complained of by appellee, because there was no evidence to sustain them, and at the same time asked the court to charge the jury, in effect, that such injuries might be considered as temporary, but must not be considered as permanent injuries. Appellant requested four special charges bearing on those matters, and the court selected one and gave it as above quoted. Railway v. Haney, 94 S. W. 386; Gosch v. Vrana, 167 S. W. 757; Webb v. Harding, 159 S. W. 1029; Railway v. Maples, 162 S. W. 426 ; Carter v. Lumber Yard, 160 S. W. 627; Beef Co. v. Yeargan, 123 S. W. 721; Poindexter v. Receivers, 101 Tex. 322, 107 S. W. 42; Sullivan v. Pant, 160 S. W. 612; Railway Co. v. Beckham, 152 S. W. 228 ; City of Greenville v. Branch, 152 S. W. 478.

But, aside-from the matter as to whether appellant is estopped from complaint because of the fact that one of its special charges dealing with, the subject was selected by the court and given, there was evidence on these other resultant injuries, and the court would have been justified in refusing them for that reason.

There is no controversy that before the injury Harris was a strong, healthy man. lie received this injury in which his foot was mangled, and he was dazed and shocked. For days he suffered intense pain. When it was seen that mortification would probably set up, the limb was amputated. From this time on he declined in health, and all his other ills developed, and he became a nerve-wrecked invalid. His habits of life were completely End radically changed. Even if it had not been in evidence from the physician, it occurs to us that it ought to be within the common knowledge of a layman that a run-down, weakened, nervous condition can readily produce just such ills as this unfortunate man suffered.

In Epstein v. Penn. Ry. Co., 143 Mo. App. 135, 122 S. W. 369, the Missouri court said:

“The testimony of plaintiff himself was that before this wreck he was a perfect man in all respects. His testimony tended to prove that after that he had become impotent. The fact of the accident was beyond question. Ho was injured in the wreck. There is no pretense of any intervening or intermediate fact to which tie change in his condition can be attributed. On these facts the jury had a right, as sensible men, as men of even ordinary intelligence, to form their own conclusions as to whether or not the alleged result was directly caused by the accident. Even assuming that the testimony of the physician in the face of his own declaration of nonexpertness on such matters is to be taken as the testimony of an expert that im-potcncy does not follow such injuries as were testified to as having been received by plaintiff, and assuming', which was not true in this case, that witnesses of established reputation as experts on this branch of pathology had testified that impotency could not arise from or be directly caused by such injuries or from such an accident, wo have in this case the express declaration of the court, given at the instance of defendant’s counsel himself in his third instructions: ‘You are instructed that the opinion of the physicians who have testified in this case are merely advisory, and not binding on you. You should accord to them such weight as you believe from all the facts and circumstances in evidence they are entitled to receive, and you are at liberty to disregard all or any part of their opinions which appear to you to be unreasonable.’ So that, under this, the jury has the undoubted right to determine as between the testimony of plaintiff and the theoretical, somewhat mythical, testimony of experts.”

The Supreme Court of Minnesota, in Rosted v. Railway, 76 Minn. 123, 78 N. W. 972, said:

“Appellant contends that there is no evidence to sustain the verdict, for the reason that it does not appear that the exposure caused the rheumatism. We are of the opinion that it is a matter of common knowledge that exposure to cold is likely to cause inflammatory rheumatism in a person who is susceptible to that disease, and therefore the evidence was sufficient to take the case to the jury, even though there was no expert evidence tending to prove that the exposure was the inducing cause of the rheumatism.”

The Michigan Supreme Court (Proulx v. Bay City, 143 Mich. 550, 107 N. W. 274) said:

“In the present case, the plaintiff did suffer physical injuries. Her knee was bruised, slivers were run into her left hand, and she sustained a rupture of the navel. Some days after the accident, symptoms of numbness and paralysis in the left side and leg, pains in the back, difficulty and uncertainty of articulation, trouble with her vision, and with the bowels and kidneys, a relaxation of the muscles of the left side, and other symptoms made their appearance. We think it was so clearly a question of fact for the jury as to whether the physical injury was the direct cause of the paralysis and other symptoms as not to require discussion.”

Even over in Massachusetts (Copson v. Railway, 171 Mass. 233, 50 N. E. 613) the court said:

“Plaintiff had enjoyed perfect health prior to an accident to a train on which he was a passenger, but shortly afterwards was found in a peculiar mental condition, with a wound on his hand and several bruises on his head. His physical system was deranged, and at the time of the trial his condition precluded him from testifying or leaving his house. Held to warrant a finding that his condition was the result of injuries received in such accident.”

See, also, on this question, Railway Go. v. Bailey, 27 S. W. 302; Board of Councilmen v. Downey (Ky.) 118 S. W. 285; Howard v. Terminal Ry. Ass’n, 110 Mo. App. 574, 85 S. W. 610; Chicago Traction Co. v. May, 221 Ill. 530, 77 N. E. 935; Harris v. Town of Mt. Vernon, 41 Wash. 444, 83 Pac. 1024.

These assignments are overruled.

The fifteenth assignment will not be considered, because the same complains of the fourth paragraph of the court's charge, and the statement does not show that same was excepted to before the same was read to the jury. In fact, it does not appear that it was excepted to at all. Appellant did, however, request a special charge which was given by the court.

The sixteenth assignment is without merit and is overruled.

The measure of damages set forth in the fourth paragraph of the court’s charge is made the basis of complaint in the seventeenth assignment, because it did not say that same should be based on what sum paid now in cash would compensate plaintiff for his injuries. It seems that, when appellant examined the charge, the objection was made that it did not contain the “paid now” rule; and thereupon the court inserted “if paid now.” Complaint is now made that it did not state, as requested, “if paid now in cash.” There is only one legal interpretation to he given to the term “paid now,” and that is paid in cash, unless for some special reason which would not apply to this case. The assignment is overruled; and the eighteenth, being without merit, is also overruled.

The gist of the nineteenth assignment is that the requested special charge should have been given, because there was no evidence that plaintiff had earned any money aside from that made in his employment as conductor for appellant. If there was no evidence on that point, then there was no error in refusing to take from the jury an issue that was not before the jury for lack of evidence. Railway Co. v. Wininger, 159 S. W. 885; Railway Co. v. Sanchez, 57 Tex. Civ. App. 87, 122 S. W. 44; Railway v. Pool, 135 S. W. 644; Railway v. Archambault, 94 S. W. 1111; Railway v. Penny, 39 Tex. Civ. App. 358, 87 S. W. 720. Of course, if there was testimony, the charge should not have been given. The assignment is overruled.

The court did not err in refusing to give the charge made the basis of the twentieth assignment; and this assignment is overruled.

The evidence in this case is such that the trial court felt called upon to and did charge the jury that appellee’s injuries, other than the’ loss of the foot, were not permanent. This being true, we think the verdict is high-el: than we would he authorized to let stand.

Therefore, if appellee files in this cause a remittitur of $5,000 within 20 days, the judgment will be affirmed for the remainder of $20,000; otherwise the judgment will be reversed and the cause remanded.


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    HICKS v. MURPHY et al.
    (No. 5396.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 27, 1915.)
    1. Judgment (§ 251) — Weongful Injunction — Damages — Oonfoemity to Pleadings.
    Where, in a suit to restrain a sale of land under a deed of trust, defendants’ answer alleged that the suit was brought for purposes of delay, and that the wrongful suing out of a temporary injunction deprived defendants of the money for which the land would have been sold from February 3d to the time of the trial, which was had on April 7th, a judgment awarding interest from February 3d to June 2d was not supported by the answer.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. § 251.]
    2. Injunction (§ 261) — Wbongeul Injunction — Damages.
    Where a temporary injunction restraining the sale of land under a deed of trust was sued out for purposes of delay, the mortgagee was not entitled to recover as damages the value of the use of the land while the sale was restrained, as there was no certainty that he would have been the successful bidder at the sale.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 609; Dec. Dig. | 261.]
    3. Injunction (§ 261) — Weongeul Injunction — Damages.
    Where a sale of land under a deed of trust was restrained by a temporary injunction sued out for purposes of delay, if the land was of insufficient value to pay the debt, interest upon its value was recoverable as damages from the injunction, but, if the land was sufficient to pay the debt, including interest for the time during which the sale was enjoined, no damages other than the expense of advertising the sale were recoverable.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 609; Dec. Dig. § 261.]
    4. Injunction (§ 261) — Weongeul Injunction — Damages.
    Where an injunction restraining a sale of land under a deed of trust is sued out for purposes of delay, the damages other than those assessed by virtue of the statute must be alleged and proved with the same certainty as in any other suit.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 609; Dec. Dig. § 261.]
    Error from District Court, McMullen County.
    Action by F. G. Hicks against J. E. Murphy and others. Judgment for defendants, and plaintiff brings error.
    Affirmed in part and reversed and remanded in part.
    See, also, 162 S. W. 925.
    McFarland & Lewright, of San Antonio, for plaintiff in error.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   MOURSUND, J.

On February 2, 1914, plaintiff in error, Hicks, applied to Hon. F. G. Chambliss, judge of the Thirty-Sixth judicial district, for an injunction restraining J. E. Murphy and C. W. Kuykendall from selling, under deed of trust with power of sale, certain land situated in McMullen county, which had been advertised to be sold on February 3, 1914. The temporary injunction was granted without notice to the defend-. ants, and, in fact, the time was too short to-give such notice, plaintiff having applied for the injunction on the day before the sale was to take place, but alleged no reason for so long delaying his application. In the order granting the temporary injunction the case was set for hearing and final determination on April 7, 1914. On March 30, 1914, the defendants filed their original answer, which contained a cross-action for damages for procuring the injunction, and, on April 7, 1914, without the issuance and service of process upon the cross-action, the court rendered judgment dissolving the temporary injunction and awarding Murphy a judgment against plaintiff for $303.12 as damages. Hicks has brought the case to this court by writ of error, and filed briefs, but at such time as to require that they be stricken out and the writ of error dismissed upon motion of appellee if no fundamental error had been committed.

Defendant in error’s pleading, in so far as it relates to the cross-action, reads as follows:

“The defendants would further show to the court that this suit was brought and is brought by the plaintiff, E. G. Hicks, for the purpose of delaying the said J. E. Murphy from collecting a just and righteous debt against said land, and that, by reason thereof, the said J. E. Murphy has been greatly damaged; that he has been deprived of the use of said land from the 3d day of February, 1914, upon which said sale could and would have taken place but for the suing out of the wrongful writ of injunction, and that the use of said land is worth 50 cents per acre per year to him, and was at that time, and that the same is the reasonable value of said land per year; that, if he be mistaken in reference to his measure of damages, then he says that he has been deprived of the money for which said land would have been sold, and the use thereof and the interest thereupon, from the said 3d day of February, 1914, up to and including the time of this trial, all to his damage in the sum of five hundred dollars ($500.00), for which he prays judgment against the said E. G. Hicks and his bondsmen upon the bond filed herein under an order of this court.”

The judgment recites that the maker of the notes is insolvent; that the injunction was sued out for delay; that the collection of the notes was delayed from February .3, 1914, to June 2, 1914, and that the damages are assessed at 8 per cent, upon $11,369.53, the amount due upon the notes on February 3, 1914.

The cross-action pleaded does not support the judgment, in that it was therein alleged that Murphy was deprived of the use of the money from February 3, 1914, to the time of the trial, which occurred on April 7, 1914; yet the judgment awarded him interest from February 3 to June 2, 1914. But this is not all. The facts pleaded as a basis for recovering damage do.not show any damages with sufficient certainty to authorize a judgment. Defendant cannot recover for the use of the land, because it is not certain .that he would have been the successful bidder at the sale. Nor can he recover interest upon tlie amount due upon the date the sale was to take place, because it is uncertain what amount the land would have brought. Johnson v. Moser, 72 Iowa, 654, 34 N. W. 459; Bullard v. Harkness, 83 Iowa, 373, 49 N. W. 855. In the last-cited case the value of the land was alleged; yet the court refused to allow interest upon such amount as damages, although it appeared that the debtor was insolvent and the mortgaged property insufficient to pay the debt. We think that, where it is alleged and proven that the land is of insufficient value to pay the debt, recovery of interest should be allowed upon the value of the land, but, if the land is sufficient to pay the debt, including interest for the time during which a sale is enjoined, it is difficult to show that any damage occurred. In fact, no actual injury would be sustained other than the expense of advertising the sale, which has not been pleaded in this case.

The damages other than those assessed by virtue of the statute must be alleged and proven with the same certainty as in any other suit. Pipher v. Bissonet, 36 S. W. 770; Texas & N. O. Ry. v. White, 57 Tex. 129; Appleton v. Draughn, 11 Tex. Civ. App. 89, 32 S. W. 46. The pleadings of defendant do not support his judgment.

The judgment, so far as it dismisses plaintiff’s suit and dissolves the injunction, is affirmed, but the judgment in favor of defendant upon his cross-action is reversed, and the cause remanded for a new trial.


author: CARL, J.

text:
    MELADO LAND CO. v. FIELD.
    (No. 5409.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 27, 1915.)
    1. Courts (§ 183) — Jurisdiction — County Court — Specific Performance.
    A county court has no jurisdiction of a cross-action, in an action on an account, which asks specific performance of a contract by plaintiff to purchase land from defendant at the price of $1,000.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ .412, 437, 439, 447, 449-455, 457, 458, 460-464, 467; Dec. Dig. § 183.]
    2. Account, Action on (§§ 6, 7) — Admissibility of Evidence — Relevancy.
    Where the petition alleged that W. was the agent of the defendant corporation, that one who was indebted to plaintiff in writing instructed W. to pay a certain sum to plaintiff, which amount the defendant, through its agent W., admitted was due from defendant to the drawer of the order and agreed to pay to plaintiff, and the evidence did not controvert W.’s agency, but instead showed that defendant, through its president, had, in a letter to plaintiff, admitted its indebtedness to plaintiff, including the amount of that order, the written order was admissible, over objection that it was not supported by the pleadings, and that it was an attempt to make the defendant answer for the debt of another without showing any agreement in writing on defendant’s part.
    [Ed. Note. — For other cases, see Account, Action on, Cent. Dig. §§ 8-17; Dec. Dig. §§ 6, 7.]
    3. Trial (§ 192) — Instructions — Assumption of Facts — Uncontroverted Facts.
    The court in his charge may assume, as established, facts alleged in the petition and not denied, and which are supported by uncontra-dicted evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. § 192.]
    Appeal from Hidalgo County Court; Jas. H. Edwards, Judge.
    Action by S. H. Field against the Melado Land Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    E. A. McDaniel, of McAllen, for appellant. Brown & Strickland, of Mission, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes-

   CARL, J.

Appellee sued appellant on various assigned accounts and alleged accepted orders aggregating $152.42. Appellant answered and, among other defenses, pleaded a contract with appellee to convey to him 10 acres of land at $100 per acre, upon which contract appellee paid, $100 and executed notes for $900. The cross-action alleged a willingness on appellant’s part to carry out the contract, tendered a deed, and, prayed for judgment for $900 and interest. To this cross-action the court sustained a demurrer on the ground that the court was without jurisdiction to try same. The allegations of appellee in his supplemental petition set up fraud and misrepresentation in the contract of sale of the land and, in the event his demurrer was overruled, prayed for a rescission of said contract. There was clearly no error in the court sustaining this demurrer, and the first assignment is overruled.

Neither was there error in the court admitting in evidence the following order:

“July 21, 1913.
“Mr. Wood: Pay to the order of S. H. Field $15.65 for groceries.
“[Signed] Eugenio Cortez.”

The objection was that there was no pleading to support this evidence; that same constitutes a variance from the pleadings; that same is irrelevant and immaterial; that Mr. Wood was not a party to the suit; and that it is an attempt to have defendant answer for the debt, default, etc., of another without showing any agreement upon defendant’s part in writing to pay same, and that same did not purport to be an order upon the Melado Land Company.

The first paragraph of the plaintiff’s petition reads:

“That heretofore, to wit, on the 1st day of January, A. D. 1913, the defendant was indebted to one Eugenio Cortez in the sum of $16.65, and the said Eugenio Cortez instructed Mr. Wood, the agent of the Melado Land Company,, in writing, to pay to the order of S. H. Field the sum of $16.65, for groceries purchased by the said Eugenio Cortez, which amount the Melado Land Company, defendant, by and through its agent, Mr. Wood, admitted to be due to the said Eugenio Cortez, and which amount the said Mr. Wood, as such agent, agreed to pay to S. H. Field.”

The agency of Mr. Wood, who is Otto or O. O. Wood, is alleged in paragraphs 1, 2, and 3 of the amended petition. There is no evidence denying the agency, and in the fifth paragraph of said petition “plaintiff alleges that the defendant company admitted all of the above indebtedness in a letter directed to Mr. S. H. Field and executed by said defendant company on March 18, A. D. 1914.” In reply to a letter from appellee, the Melado Land Company, under a Houston date of March 18, 1914, acknowledged the debt due appellee aggregating $152.42, one item of which is that about which complaint is here made. This letter was in the company name and signed by D. F. Boyles, president. Prior, to the time the goods were furnished Mr. George Hammon, attorney for appellant agreed with appellee that he (Field) should furnish supplies to the laborers in the employ of Melado Land Company on their orders to be accepted by Mr. Otto Wood. In fact, the testimony is sufficient to show that it was an original undertaking on part of the company, through its duly authorized agents to pay these debts.

As stated, the pleadings allege the agency of Mr. Wood, and the same is not denied, also his acceptance of the orders, for appellant; and where the petition alleges a certain fact, which is not denied, and the proof bears out the allegations, no testimony being offered to the contrary, the court may assume that fact as established in his charge to the jury, and the same does not bring the charge within range of the criticism that it is a charge on the weight of the evidence.

All other assignments are overruled, and the judgment of the trial court is in all things affirmed.


author: TALBOT, J.

text:
    SHOWS v. CITY OF DALLAS.
    (No. 7213.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 9, 1915.
    Rehearing Denied Feb. 6, 1915.)
    1. Municipal Corporations (§ 120) — Ordinances— Extraterritorial Operation.
    While, city ordinances have no extraterritorial force unless specifically provided by the empowering statute, they operate against nonresidents within the city and against the property of nonresidents situated within the corporate limits.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 274-280; Dec. Dig. § 120.]
    2. Eminent Domain (§ 277) — Break in Sewer-Action — Notice to City — Necessity.
    Plaintiff’s property was damaged by the bursting of a sewer which the city had built in a negligently defective manner across the property. The city charter contained a provision exempting it from liability for damages, unless the injured person should give notice of the injury within 30 days after it occurred, and that the city should not be liable for injury to person or property by any defect in any public street or work of the city unless written notice of the defect had been given the city 24 hours before the injury. Held), that the charter requirement of notice was inapplicable to cases of injury to property under Const, art. 1, § 17, forbidding that any person’s property be taken or damaged without adequate compensation.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 704; Dec. Dig. § 277.]
    3.Municipal Corporations (§ 845) — Break in Sewer — Injury to Health — Notice to City — Necessity.
    Where a sewer was so negligently built across plaintiff’s property that it burst and caused a nuisance to the injury of plaintiff’s health, the negligent construction being due to the act of the city itself, there was no necessity of the notice of defect required by the charter to be given the city 24 hours before injury, or the notice of claim of damages required within 30 days after injury.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1796-1802; Dec. Dig. § 845.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by F. F. Shows against the City of Dallas. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    Parks & Hall, of Dallas, for appellant. C. F. O’Donnell and M. S. Church, both of Dallas, for appellee.

      Tor other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   TALBOT, J.

The appellant sued the city of Dallas alleging, in substance, that appel-lee was a municipal corporation with W. M. Holland as its mayor and J. B. Winslett as its secretary; that on the 4th day of August, 1910, Mrs. Maree Hagin Smith was .the owner of lots 14, 15, and 16 in block 13 of Reeves’ South Side subdivision, fronting on Irwin, avenue, just west of Camp street, and outside of the corporate limits of said city; that on said date Mrs. Smith, by an instrument in writing, granted to the city of Dallas the right to lay, construct, and maintain a sewer under and through said lots or parcels of land for the purpose of carrying off from said city and its corporate limits “filth, fecal matter, sewage, and debris” ; that thereafter, in 1911, said city, acting within the scope of its corporate powers, did lay and construct said sewer; that appellant intermarried with the said Mrs. Smith, and in February, 1912, he and his said wife erected a five-room house on said lots of the value of $1,500, and moved into it and occupied it as their home; that thereafter, on the last day of March, 1912, the said sewer and sewer pipes, on account of their negligent and unskillful construction, and the improper laying and placing thereof, burst, sunk in, and overflowed, emitting from said sewer great quantities of stench, noisome smells, vapors, and bad odors; that the plaintiff immediately following the creation of the nuisance, as aforesaid, verbally notified defendant of its existence, and insisted from time to time that it be abated, but that defendant negligently continued to permit the same to remain and exist; that as the proximate result of the negligence of the defendant in the construction of said sewer, and the failure and refusal of defendant to abate it, plaintiff’s residence became almost uninhabitable, and caused plaintiff and his wife great nausea, serious sickness, and mental distress, to their damage in the sum of $60,000; that, in addition to the said injuries to plaintiff and his wife, their house, as a result of the negligence of the defendant in the construction of the sewer, and the overflow and deposit of its contents upon their premises, has been injured in that the floors thereof have become warped and changed, the framework thereof has become out of plumb, the paper on the walls has been torn and made unsightly and the flues caused to burst, to their damage in the sum of $750; and that their lots connected with and adjacent to said house, as a result of the aforesaid negligence of defendant, the bursting of said sewer, and the overflow of its contents, have washed out, caved in, and otherwise injured, apart from their said house, to their damage in the sum of $250. Plaintiff charged that all of the alleged negligence and wrongs of the defendant and the damages resulting to plaintiff and his wife occurred without and beyond the territorial limits of the city of Dallas, and prayed for damages in the sum of $61,000. The defendant answered by general and special demurrers to-plaintiff’s petition and a general denial of the allegations thereof. The general demurrer and two special exceptions urged by the city were sustained, and, the plaintiff declining to amend, his ease was dismissed. The special exceptions sustained are as follows:

(1) “This defendant specially excepts to said petition because said petition fails to allege and show by proper averment that the defect causing the damage or injury alleged to have been sustained by plaintiff were actually known to the mayor or city engineer by personal inspection for a period of at least twenty-four (24) hours prior to the occurrence of the alleged injury or damage, and fails to disclose that the mayor or city engineer’s attention had been called thereto by any notice in writing at least twenty-four (24) hours prior to the occurrence of said injury or damage, and fails to allege that the proper diligence had not been used to rectify said defect after the same had been known by, or called to the attention of, the mayor or city engineer.”
(2) “Defendant specially excepts to plaintiff’s said petition because it is not affirmatively alleged in said petition that full notice of said injury or damage and the particulars thereof were duly given by the plaintiff to the city of Dallas, to the mayor thereof, or to the city secretary thereof, within thirty (30) days after the happening of same, as required by the city charter of the city of Dallas.”

At the time of the injuries complained of, and for some time prior thereto, the. city of Dallas was acting and being administered under a special charter granted by the Legislature, and under , the commission form of government. Article 14, § 11, of said charter, reads thus:

“Before the city of Dallas shall be liable for damages of any kind, the person injured, or some one in his behalf, shall give the mayor or city secretary notice in writing of such injury within thirty days after the same has been received, stating specifically in such notice when, where, and how the injury occurred and the extent thereof. That the city of Dallas shall never be liable on account of any damage or injury to person or property arising from, or occasioned by, any defect in any public street, highway, or grounds, or any public work of the city, unless the specific defect causing the' damage or injury shall have been actually known to the mayor or city engineer by personal inspection for a period of at least twenty-four hours prior to the occurrence of the injury or damage, unless the attention of the mayor or city engineer shall have been called thereto by notice thereof in writing at least twenty-four hours prior to the occurrence of the injury or damage, and proper diligence has not been used to rectify the defect after actually known or called to the attention of the mayor or city engineer aforesaid.”

The written notice required in this article of appellee’s charter was not alleged, and for that reason its said demurrers were sustained by the court and appellant’s suit dismissed. Appellant, by his assignments of error, contends that this action of the court was error because (1) appellee itself negligently constructed the sewer causing the damages complained of, and therefore the provision of the charter mentioned does not apply; (2) because the provision of the charter in question has no extraterritorial force, and, it having been alleged that the nuisance resulting in the injuries complained of was created by the negligence of appellee outside of and beyond the corporate limits of the city of Dallas, it was not necessary to allege, as a condition precedent to appellant’s right of recovery, that the notice required in said provision had been given; and (3) because, under the Constitution of this state, appellant’s property could not be taken, damaged, or destroyed for or applied to public use without adequate compensation being made therefor without his consent, and therefore it was not essential to his right of recovery to allege and prove the giving of the notice required in said article of appellee’s charter.

Ordinances and by-laws passed by the governing bodies of municipal corporations have no extraterritorial force, unless specially provided by the empowering statute for particular purposes. They do, however, operate with all the force and effect of statutes both against residents and nonresidents within the municipality, and also against the property of nonresidents situated within the corporate limits of the city. 28 Cyc. 391. The charter of the city of Dallas having been granted by a special act of the Legislature, all its provisions have the force and effect of statutes, and as such can be enforced, it would seem, in a proper case, beyond its territorial limits. But we are of opinion that the provision of appellee’s charter invoked by it and applied by the court has no application to the ease before us. In City of Dallas v. Young, 28 S. W. 1036, this court held that a provision of said city’s charter to the effect that no action against the city could be maintained for damage caused by any street, sewer, culvert, etc., being out of repair, unless it had remained so for ten days after notice in writing had been given to the may- or or city engineer, did not apply when the damage resulted from the erection of embankments above the level of the surrounding land causing the flooding of the plaintiff’s land during rains, and the emptying of the contents of a nearby sewer on such lands. In support of this holding the case of City of Houston v. Isaacks, 68 Tex. 116, 3 S. W. 693, is cited, in which the Supreme Court of this state held that a similar statute did not apply where the injury complained of was caused by the negligent action of the city itself. Likewise this court held in City of Dallas v. Cooper, 34 S. W. 321, that the plaintiff’s petition which alleged that said city so unskillfully graded and paved its streets and alleys as to raise them above plaintiff's property, thereby closing the natural outlet of the water, and then negligently and unskillfully constructed its sewer and closed up the manholei or drain whereby plaintiff’s property was overflowed and damaged, stated a cause of action, and that, as the attention of the city’s servants who negligently closed the sewer was called to the negligence, the city could not invoke the right of notice of such condition. Citing City of Houston v. Isaacks, supra, City of Dallas v. Young, supra, and City of Houston v. Kleinecke, 26 S. W. 250. In the last case cited above it appeared that Calhoun street, in the city of Houston, had Been dedicated as a public street; that the plaintiff became the owner of a lot fronting on said street after such dedication, buying with reference to the advantages resulting to it from the presence of the street. The city, for the purpose of drainage, caused a canal or ditch to be dug in the street depriving appellee of the approach to the front of the property, which it had afforded, and damaged the value of the lot. The plaintiff sued the city and recovered judgment. The charter of the city of Houston provided that the city should not be liable to any person for damages or injuries caused from streets, ways, crossings, bridges, or sidewalks being out of repair from gross negligence of the corporation, unless the same had remained so for 10 days after special notice in writing given to the mayor or street commissioner. This notice had not been given, and the question raised-on the appeal was whether or not the city, under its charter, was liable for the damages sustained by the appellee in the absence of such notice. In holding that the city was so liable, the Court of Civil Appeals of the First District said:

“We think the question of liability of the city is settled by the decisions of this state. Railway Co. v. Fuller, 63 Tex. 467; Railroad Co. v. Eddins, 60 Tex. 656; City of Ft. Worth v. Howard, 3 Tex. Civ. App. 537, 22 S. W. 1059. The provision' of the city charter, copied in the second assignment, does not apply to this kind of a case. Besides, the right to such compensation is secured by the Constitution, and cannot be taken away by the Legislature.”

This latter statement of the Court of Civil Appeals is based upon the familiar provision of our Constitution (article 1, § 17), which declares that “no person’s property shall be taken, damaged or destroyed for, or applied to, public use without adequate compensation being made unless by the consent of such person,” and the clear holding of the court is that, where a man’s property has been so taken or “damaged,” notice, such as that required in the appellee’s charter upon which it relies, does not have to be alleged and proved as a condition precedent to the right of recovery. This holding we approve, and, if correct, it follows that the trial' court erred in sustaining appellee’s demurrers to that phase or branch of appellant’s case claiming damages, for the reasons alleged, to his hou<re and lots.

But was it necessary for appellant to-allege the giving of the notice required by appellant’s charter in order to maintain his suit for the damages claimed to have been suffered by himself and wife personally on account of the foul odors emitted by the alleged bursting of the sewer, and from the contents of the same case upon appellant’s premises? Our conclusion is that it was not. We are unable to distinguish the case in this respect from that of City of Houston v. Isaacks, supra. In that case it was held that the negligent act complained of was'the act of the city itself, and hence a similar provision with respect to the giving of notice as that invoked in the present case did not apply. Here the allegations are full and specific that the sewer involved was negligently constructed by the defendant city, and that, as a proximate result of that negligence, the nuisance complained of was created, existed, and the damage done. It is not specifically charged that the work of constructing the sewer was done by the mayor of the city, or its secretary, to whom the charter required the notice to be given, but the construction of the sewer was done under the orders, direction, and control of its mayor and board of commissioners, and was their act, and the act of the city they represented, as clearly and as much so as was the act complained of in Isaacks’ Case the act of the city of Houston and its mayor. The case is therefore unlike, and is distinguishable from, that of Parsons v. City of Ft. Worth, 26 Tex. Civ. App. 273, 63 S. W. 889, cited by appellee. In that case, as shown by the opinion delivered, it was alleged that the city of Ft. Worth had duly and legally set apart and established dumping grounds for the deposit and burial of all dead and offensive matter of said city, and the complaint was that certain offensive matter was not properly interred in accordance with the city’s regulations. There was no complaint of negligence on the part of the city in locating its dumping grounds at the place it did, or of insufficient regulations. Nor was any complaint made of the fact that offensive matter was deposited on the dumping grounds for burial. This being the status of the case, the Court of Civil Appeals of the Second District held that the plaintiff’s pleadings, in effect, charged that the management of the city dumping grounds was that of the servants of the city; that the city, through its council, had designated a proper place for the dumping grounds, and had prescribed suitable regulations for the burial of all dead and offensive matter of the city, and therefore the negligence of which the plaintiff complained must be construed to have been that of the servants and officers of the city, other than the mayor or city secretary; and that, these being true, the case was distinguishable from that of City of Houston v. Isaacks. Such is not true, in our opinion, of the ease before us, and we therefore hold that the branch of it we are now considering is ruled by the Isaacks Case. At all events, the trial court erred, we think, in holding that that portion of appellant’s cause seeking to recover damages for injury to his property was subject to appellee’s demurrers.

The judgment is reversed, and the cause remanded.


author: FLY, C. J.

text:
    NATIONAL RY. OF MEXICO v. LIGARDE.

    (No. 5380.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 13, 1915.
    Rehearing Denied Feb. 10, 1915.)
    1. Master and Servant (§ 264) — Injuries to Servant — Negligence—Complaint.
    Where a petition for injuries to a servant by the explosion of a locomotive charged defendant with knowledge of the condition of the engine, but did not allege in detail as to how such knowledge could have been obtained, evidence that the defect would have been disclosed by an application of the hydrostatic test was admissible.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. § 264.]
    2. Master and Servant (§ 288) — Injuries to Servant — Assumed Risk — Question eor Jury.
    In an action for injuries to a servant by the explosion of a locomotive, whether plaintiff assumed the risk held for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.]
    3. Appeal and Error (§ 882) — Right to Allege Error — Evidence.
    Where, in an action for injuries to a servant by the explosion of a locomotive, defendant proved that the hydrostatic test was the best to ascertain the presence of the particular defect, though there was no allegation to that effect in the petition, defendant could not object that plaintiff also proved the same fact and used defendant’s failure to apply such test as a basis of a charge for actionable negligence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.]
    4. Appeal and Error (§ 730) — Assignments op Error — Suppiciency.
    An assignment that the court erred in not giving defendant a special charge and general questions to the jury, as they “were all pertinent to and required by the issues of fact under the law,” was too general to present any question for review.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3013-3016; Dec. Dig. § 730.]
    5. Appeal and Error (§ 1122) — Court op Civil Appeals — Findings.
    The Court of Civil Appeals will not accede to a request to answer special questions in seri-atim as a jury may be required to do.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4420; Dec. Dig. § 1122.]
    6. Master and Servant (§ 273) — Injuries to Servant — Assumed Risk.
    Where an explosion of a locomotive by which plaintiff was injured was not shown to have been caused by a crack in the dome of the boiler, it was immaterial that plaintiff had equal, if not superior, opportunity with the other officers, agents, and employés o'f defendant to know of any defect or crack in the dome cap, and whether it was an old crack or one recently made.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 936-938; Dee. Dig. § 273.]
    7. Master and Servant (§ 110) — Injuries to Servant — Explosion op Locomotive-Negligence.
    Where an old locomotive, which exploded and injured plaintiff, had been in the shop for repairs, and no kind of inspection would have revealed its steam pressure resistance, but the only perfect test was the hydrostatic or water test, defendant was negligent in failing to apply-such test after the repairs had been made.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 214, 214%; Dec. Dig. § 110.]
    8. Damages (§ 132) — Excessiveness — Personal Injuries.
    Plaintiff, a train mechanic in defendant’s railroad repair shops, was injured by the explosion of a locomotive. He was badly burned about the chest and face, sustained a fracture of the frontal bone which required treatment for four weeks, and suffered hemorrhages from his mouth, nose, and ears. Pie also passed blood from the bowels and in the urine for a considerable time. His mind was affected by his injuries, and his optic nerves partially par-alj'zed. He wás rendered incapable thereafter of any great physical labor, and several months after the injury he did not appear to be making a satisfactory recovery, and there was evidence that his brain was permanently injured and that he would never regain his normal mental ■•status. Held, that a verdict awarding him $20,-000 was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.]
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Action by H. Ligarde against the National Railway of Mexico and another. From a judgment for plaintiff against the National Railway of Mexico alone, it appeals.
    Affirmed.

      Greer & Hamilton, of Laredo, for appellant. Hicks & Hicks & Teagarden and Charles M. Dickson, all of San Antonio, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

       writ of error pending in Supreme Court.

   FLY, C. J.

This is a suit for damages arising from injuries inflicted on Fred Single, an einployé of appellant, instituted by appellee as next friend for said Single against appellant and the Texas Mexican Bailway Company. The suit was dismissed as to the last-named railway company, and the cause as to appellant was submitted on special issues, and upon the answers to such issues judgment was rendered in favor of appellee for $20,000.

The defense in this ease was that Single was a trained mechanic who had worked on the boiler of the engine which exploded, and it was his duty to inspect and discover the defects in the boiler, and that his failure to do so resulted in the explosion that injured him, and also that he assumed the risk of the explosion;

The first assignment attacks the petition, and 14 of the remaining assignments present, with slight variations, the defenses enumerated, and the sixteenth assignment complains of excess in the verdict. Our conclusions of fact are found stated in connection with the consideration of the question of excess and in other portions of the opinion.

The first assignment of error is overruled. The petition alleged the general duty of furnishing Single with a safe place in which to work, and charged appellant with knowledge of the condition of the engine, or in being negligent in not having such knowledge, which it would have had if reasonable care had been exercised. The pleading did not go into details as to how such knowledge could have been obtained, and consequently proof that the hydrostatic test would have disclosed the defect in the engine was admissible. The cases cited by appellant would be applicable if appellee had set out the tests that should have been applied by appellant, omitting the hydrostatic test. In the case of Railway v. Hennessey, 75 Tex. 155, 12 S. W. 608, it was alleged, as grounds of negligence, failure to ring the bell, to whistle, to give signals, to stop the train, and that the train was running too fast; and the court very properly held that proof of a failure to have a light at the crossing was not admissible because not alleged. In the ease of Railway v. French. 86 Tex. 96, 23 S. W. 642, it was alleged that the foreman “ ‘negligently placed a heavy piece of timber on the ground, and caused a ditch to be dug’ too close to it, from which cause the dirt caved in and caused the log to fall on plaintiff.” It was held that the allegation did not support proof that there were other methods for performing the work that were safer. In the case of Snipes v. Bomar Cotton Oil Co., 161 S. W. 1, it was held that the petition was so defective as to not admit proof of negligence. When ap-pellee alleged negligence in failing to inspect the engine, proof was admissible of any kind of inspection that would have disclosed the defect in the dome of the engine. Railway v. Brinker, 68 Tex. 500, 3 S. W. 99. Appellee could not know, and consequently could not plead, every precaution that should have been taken by appellant in discovering the defective condition of the. engine. As said in the Hennessey Case herein cited:

“Where, from the nature of the case, the plaintiff would not be expected to know the exact cause or the precise negligent act which becomes the cause of any injury, and where facts are peculiarly in the knowledge of the defendant, he would not be required to allege the particular cause, but it would be sufficient to allege the fact in a general way, as that there was a defect of machinery or structure or want of skill in operating on the part of defendant or its servants, or some such fact as would give the defendant notice of the character of proof that would be offered to support the plaintiff’s case.”

The second and third assignments of error are overruled. The facts raised the issue of negligence upon the part of appellant, and it was a question of fact to be determined by the jury as to whether appellee assumed the risk arising from the defective engine or not. The uncontradicted evidence did not show that it was the duty of appellee to inspect the engine. The general foreman of appellant’s mechanical department at Laredo, Tex., swore:

“Single was not the man in full charge of the tests in making and putting it in proper condition. He had not anything to do with this (the hydrostatic) test.”

The evidence tended to show that the water test alone would have disclosed the defect in the dome of the boiler. It was not the duty of appellee to apply any tests, but that duty devolved upon appellant, although it is reiterated that the undisputed facts showed that Single was the only person upon whom the duty of inspection rested, which assertion is in the very face of the evidence of the general foreman hereinbefore quoted.

The fourth assignment of error is without merit. No matter whether there were any allegations in the petition or not as to the hydrostatic test, appellant thought it important to show that the hydrostatic test was the best, and cannot now complain that appellee also proved the same thing and used it as a weapon against appellant. It put the weapon into his hands.

The fifth assignment of error is very general and should not be considered. It states that the court erred in not giving its special charge and questions to the jury, as they “were all pertinent to and required by the issues of fact under the law.” In the statement are copied a charge, which did not give the law under the facts, and 38 questions, and no effort whatever is made to show the pertinency of any of the questions. The dissertation in tiie argument on the jury-system gives no aid to this court in passing upon the propriety of the requested questions.

The court presented to the jury every issue made by the facts. This court cannot accede to the request “to answer these questions in seriatim just as the jury should have been required to do.” The questions were too numerous to be submitted to a jury in any personal injury suit.

It did not matter if Single “had equal, if not superior, opportunity with all other officers, agents, and employés of defendant to know of any defect or crack in the dome cap, whether the same was an old crack or was recently made,” as the testimony did not show that the explosion took place on account of a crack in the dome; but the sixth assignment rests on the assumption that there was a crack in the dome and that the explosion resulted therefrom. Every issue made by the facts was clearly submitted to the jury by the court.

The seventh and eighth assignments of error are but repetitions of preceding assignments and they are overruled. The ninth aisd tenth assignments of error are also overruled. To try a case as was sought by appellant would render it interminable and would confuse the jury instead of enlightening it on the issues.

The eleventh, twelfth, and thirteenth assignments are overruled. The evidence is ample to show that Fred Single did not know that the dome cap was defective, and could not have discovered the defect without a test that he had no authority to apply. The work he did on the dome did not give way, but was intact after the explosion. He did everything required of him in a workmanlike manner. It was not the duty of Single to investigate and know the condition of the dome cap.

The engine was old, was in the shop for repairs, and it was the duty of appellant to apply all tests necessary to ascertain how much steam the boiler would sustain. The only perfect test was the hydrostatic, and the jury was justified in finding that the railroad company was negligent in not applying that test. There is not one word of testimony to sustain the reiterated assertion that it was the duty of Single to apply tests to the engine or to inspect it for defects. No kind of an inspection wpuld have revealed the defect, but the water test would have disclosed it, and appellant alone could apply that test. After his work was completed, there was no leak in the dome. It is admitted by appellant “that it is safest and best to apply the hydrostatic or water test after all repairs are made in the boiler of a locomotive,” and yet complaint is made that the jury found that it was negligence to fail to make such test after the boiler had been repaired. The fourteenth and fifteenth assignments of error are overruled.

The evidence shows that Single was injured by an engine that had been in the shops of appellant at Laredo for 20 days undergoing repairs. Single was ordered by his foreman to set the safety valve on the engine preparatory to taking it out on a test run. The original steam pressure that the engine would bear was 140 pounds, but it had been reduced to 130 pounds. The safety valves are on the top of the dome of the boiler. There was an explosion at the dome which struck Single and threw him co the ground in an unconscious state. The steam pressure at the time of the explosion was only 110 pounds. Coleman, the foreman, swore that in his report of the accident he stated that a crack in the dome was the cause of the accident, but did not swear to it on the trial. He said he and the representative of the Interstate Commerce Commission concluded there was a crack in the casing of the dome. There was no proof that there was a crack before the explosion nor that it caused the explosion. Single was badly scalded about the face, and had hemorrhages from his mouth, nose, and ears. He was badly burned about the chest, and there was a fracture of the frontal bone of his head which required treatment for four weeks by a physician. His mind was affected by his injuries. His eyes were injured, the optic nerves being partly paralyzed. He is incapable of any great amount of physical labor, and is mentally unbalanced; one physician testifying that when he saw him Single acted like a crazy man. That was several months after the injury. Single was totally unconscious for 3 days, and only partially conscious for 30 days after the injury. The fact that Single was very nervous and that his mind was unbalanced was testified to by physicians of two other railroad companies. The surgeon of appellant swore that there was a fracture of the bone in the forehead, and that Single had “hemorrahages, vomiting blood and urinating blood, and also passing blood from the bowels,” and also that he was in an unconscious condition for three or four days, and then went into a semicomatose condition for two or three weeks, then became melancholic, cross, restless, and nervous. That surgeon swore that Single’s condition at the time of the trial. 18 months after the accident, did not compare favorably with his condition before the accident, and that his language was a little incoherent at times. None of the physicians swore that Single would ever recover. We cannot hold that the verdict, under all the circumstances, is excessive. The evidence indicates that the brain of Single is permanently injured, and that he will never regain his normal mental status. We can imagine no worse disaster to a man of average intellect than to have his brain so injured as to seriously affect his mind and cause him to go through life incoherent in his language and childish in his actions.

The judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    Ex parte JENNINGS.
    (No. 3409.)
    (Court of Criminal Appeals of Texas.
    Jan. 27, 1915.)
    Habeas Cobptjs (§ 102) — JURISDICTION—Ab-best and Commitment on Ceiminal Chaeg-es — Review.
    One who is properly charged with an offense under a valid statute cannot by habeas corpus avoid a regular trial by showing a defense, but the defense must be proved on the trial, and one properly charged with pursuing an occupation without a license, in violation of Pen. Code 1911, art. 130, and Rev, St. 1911, art. 7355, § 13, cannot on habeas corpus show a receipt for the license tax.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 87-89; Dee. Dig. § 102.]
    Appeal from Tyler County Court; Tom F. Coleman, Judge.
    Habeas corpus by T. H. Jennings for his release from custody by. virtue of a capias issued out of the county court. From a judgment remanding relator, he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, P. J.

Appellant sued out a writ of habeas corpus before the county judge, alleging therein that he was restrained of his liberty by the sheriff of that county by virtue of a capias issued out of the county court. He further alleged that the basis for the warrant of his arrest was founded on an affidavit and information filed in said court charging him with pursuing an occupation without a license; that on the day and date of filing said information, and long before this complaint, plaintiff had procured a license for pursuing said occupation, all of which was known to the county attorney and others who are instigating this prosecution.

Neither the complaint nor information are anywhere shown in this record. It appears, however, that the court granted the writ and heard the case, and, in his judgment remanding appellant, he states that, all parties having appeared .and answered, the court, after hearing the pleadings, evidence, and argument, holds that appellant’s prayer for relief should be in all things denied; “it appearing that there was, a valid complaint and information filed in this court charging the relator with the offense of pursuing a taxable occupation without license, to wit, ‘presenting dramatical representations and a theater in a tent in the town of 'Woodville,’ and it further appearing that the capias issued thereon, by virtue of which relator is held in custody, is a valid warrant.” And remanded the applicant to the custody of the sheriff.

From this it clearly appears that appellant was properly charged by complaint and information under article 130, P. C., and R. S. art. 7355, § 13, with an offense. There is no statement of facts, but appellant has two bills of exceptions: One to the effect that after the state had introduced all of the evidence, which consisted of the affidavit for information and information based thereon, and the capias, he demurred to the evidence because it was insufficient to justify the court in presuming that the relator had committed the offense charged against him, or that an offense had been committed, and the court overruled said demurrer and remanded him, to which he excepted. The other is to the effect that he offered in evidence what purported to be a receipt for said tax from the comptroller of this state, but the court refused to permit him’to introduce the same, or consider it, or to hear any evidence as to whether or not an offense had been committed, or that the relator was connected with the offense with which he was charged in said information, and he thereupon excepted to the court’s said action. The court, in explaining this bill, says that the state objected to this tax receipt for the reason that evidence tending to establish the guilt or innocence of a defendant could not be properly considered in a habeas corpus hearing, and for the reason that the state expected to show that the receipt was illegal and void.

The action of the lower court was in all things correct, except that he ought to have peremptorily refused the writ of habeas corpus. When a person is by proper indictment or complaint and information properly charged with the commission of an offense under a valid law, such person cannot by any habeas corpus proceedings avoid a regular trial before a jury or the court if he waives a jury in a misdemeanor case. If he has any defense, he can show that on the trial and cannot, by showing it on habeas corpus proceedings, avoid a trial. Ex parte Muse, 168 S. W. 520.

The judgment is affirmed.


text:
    DAVIS v. STATE.
    (No. 3398.)
    (Court of Criminal Appeals of Texas.
    Jan. 27, 1915.)
    Ceiminal Law (§ 956*) — Motion fob New Tbial-^Geounds — Disqualification of Ju-eoe — Evidence.
    Denial of motion for new trial on the ground that a juror was not qualified because he had not resided in the county six months, prior to the time he served as juror, not verified or supported by any evidence, presents no error.
    ■ [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2373-2391; Dec. Dig. § 956.*]
    Appeal from Johnson County Court; J. B. Haynes, Judge.
    George Davis was convicted of crime, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Under article 1231, P. C., appellant was convicted for willfully and wantonly killing a cow, and was fined $5i He raises only two questions: First. He claims the evidence is insufficient to sustain the conviction. We have carefully read it, and we think it is sufficient. His other ground is that he claims and alleges in his motion for new .trial that one of .the jurors was not a qualified juror in that he had not resided in Johnson county six months previous to the time he served as a juror. This motion is in no way sworn to hy any one, nor is there any evidence whatever in the record tending to support it. It therefore presents no error.

The judgment is aflirmed.