| Tex. App. | Mar 28, 1908
This is a companion case to that of Chicago, Rock Island Gulf Railway Company v. B. B. Poore, in which the judgment against the railway company was affirmed by this court February 15, 1908, this action being one for personal injuries sustained by the wife and children of appellee in a wreck in the yards of appellant in Fort Worth, on account of which appellee recovered a verdict and judgment for something over five thousand dollars. The liability of appellant as a carrier of passengers for the injury sustained is not questioned, nor is any complaint made of the amount of the verdict.
In the first assignment we are asked to hold that the court erred in refusing to instruct the jury upon the question of damages for traumatic neurosis, that if they believed the suffering of the wife of appellee was "due to her imagination, or a mere belief that she was such a sufferer, then as to such suffering" to find for the defendant. We are referred to the testimony of Doctor McCutcheon and Doctor Harris for evidence raising this issue, but after consulting the page of the transcript referred to we find nothing tangible in it. Besides, if this condition of the imagination be one of the concomitants of the neurotic condition produced by the shock, we see no reason why the person producing the shock should not respond in damages for the injury.
In the next assignment, complaint is made of the court's refusal to allow Doctor McCutcheon, whose testimony on re-direct examination had tended to refute the suggestion that the wife of appellee was a malingerer, to testify on re-cross-examination about the case of Oran Hoskins, appellant offering this testimony, as claimed, to show "that there were instances where the best of doctors were fooled." The witness was asked the following question: "You recollect the case of Oran Hoskins, a very famous case of nervous disorder?" To which he answered: "Yes, sir. I recollect reading about it, but I have no personal knowledge of the case." Thereupon counsel for appellee "objected to individual cases being brought out, particularly where the doctor had never had the case under observation himself; the only purpose being to inflame or prejudice the jury." In this we find no material error.
The next ground of complaint is the court's refusal to permit counsel for appellant to read to appellant's witness, Doctor Duringer, an interesting extract from Bailey on "Diseases of the Nervous System from Accident and Injury," which would doubtless have aided counsel for appellant in arguing the case to the jury, but we hardly think it could be seriously contended that this ruling would require the judgment to be reversed. *48
The remaining assignments complain of the argument of counsel for appellee and of the course pursued by him in persistently making improper remarks and then withdrawing them when objection was made. We concur with appellant that the course pursued was deserving of censure, but would not feel warranted in reversing the judgment in this instance, especially since liability is undisputed and the amount of the verdict is not complained of. The judgment is therefore affirmed.
Affirmed.
Writ of error refused.