Dallas Railway & Terminal Co. v. Hendrix, 261 S.W.2d 610

Dallas Railway & Terminal Co. v. Hendrix

261 S.W.2d 610

Tex. App.

1953

Check Treatment

*1 CO. TERMINAL RAILWAY DALLAS HENDRIX.

No. Appeals of Texas.

Dallas.

July 10, 1953. Denied

$60; $5; ambulance bill and Appellee $9.20. lost about a week’s time from his work as a result of the first col- lision.

The second in collision Tarrant County appellee which and a participаnts, were had much more consequences. serious par- The third ty Appellee’s was killed. car was a total Appellee ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍loss. himself suffered a fractured pelvis involving hip, fracturеd left foot. His left completely knee had not recovered from its in the first acci- Burford, Ryburn, Ford Hincks & and dent, but was not re-injured in this second Graham, Dallas, appellant. for Bruce accident. hospitalized He was for nine weeks and later went back for another Dallas, Riley, appellee. Jr., W. D. for eight hospital, weeks. His doctor’s and nurses’ bills $3,000. were more than DIXON, Chief Justice. Appellee himself appellant negligence case involving This is a two did not collision, cause the second nor did The first collisions. collision automobile anyone appellant connected with it; cause County, Sept. in Dallas Texas on occurred the second collision was caused operated 1950 between car owned and negligence party; of the third but he did appellee, operated by and a bus an em- not sue party’s the third estate because ployee of The second col- nothing payment from which could County, lision be effected. one month on Oct. after the first The trial court appropriate submitted This second collision. collision was be- issues concerning negligence parties operated tween an automobile owned and accident. These were answered an automobile owned against appellant. In con- operated by pеrson a third who is not a nection with issue respecting Appellant to this suit. physical pain, doctor’s and hospital bills, way responsible for the Tarrant Coun- and diminished earning capacity, the court ty collision —in fact had to do with gave this instruction: Nevertheless adjudged were allowed * * * “You are instructed you theory by ap- can not and must not allow or fix sum the first accident money whatsoever as appellee’s recovery which resulted from the ac- juries he received in the second accident. cident in which he was involved Tar- Appellee’s $1,391.65. total * * * rant on Oct. cept you may preponderance find from In Dallas on Sept. the evidence that said Dallas County which may retarded, you if participants, appellee were both retard, did the plaintiff eye required over his left cut received by him in the stitches; or twelve eleven lacerations on Tarrant County collision(Emphasis sup- serious; face and chest which were not plied.) to his left knee which became days a few after the infected argues accident. His the above instruc- damaged proper automobile extеnt tion was because there was evidence His doctor’s about bill was finding $390. or $50 from, says negli- further its sooner have recovered gence expense, cannot as in the first collision and with less *3 law, proximate proximately matter a injuries be considered for the earlier but recovery appellee’s retarding the cause from by appellant’s negligencе his for the that the later reason first accident. foresceableness, lacking. element of is that is Appellant’s point first That foreseeableness is neces a permitting the errеd trial court the sary proximate element of cause is too al- on an to allow well a recovery settled as matter of law to need Tarrant leged from the retarded аccident, Further, to citation authorities. under occurring law of in this a State appellant, and to with the accident responsi committing negligent act is not party. later accidеnt consequence merely ble for which is point ap- experi its first possible In connection with according to occasional ence; was no evidence pellant says expected there he to foresee and re- ponsible consequence the court’s instruction. We for a which is carefully have ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍fcgree probable according with Wе and usual ordinary Lines, the record and we experience. lead re-read Garrett Waits Bus v. testimony Tex.Civ.App., the effect that 229 no writ ref. S.W.2d in the lecovery injuries his from think We also this is a correct statement of by prior fact retarded was in “A the law: remote cause cannot second himself tes- the basis for damages his be made action earlier appellant did not cause the tified that if it did more than furnish the con ** * (appel- by dition which the Tarrant again knee lee’s) injured possible was not hurt if the is the result County collision. His doctor of the Tarrant some other cause which reasonable anticipated, knee re- no infection minds would not have even hip though injuries hap- infection fol- and that would not have pened camе in his lowing the second accident condition.” for such Panhandle opinion hip Ry. Sledge, Tex.Civ.App., itself. Another from the doc- & S. F. Co. v. following attended the 31 Tex.Com.App., tor who S.W.2d affirmed ap- County collision testified that 45 S.W.2d 1112. any history pellee him of a give did not principles Applying the above testimony previous injury. This cer- knee us, the fact situation before we are of tainly does not bear out al- proximate opinion the thread of petition legation in his weakened cause, appellant’s beginning with negli impeded “greatly of his knee accident, gence in the first does not reach recovery plaintiff’s include the sustained juries sustained the second accident.” the second think accident. We testimony no witness There is say that it is unreasonable to under the quote plaintiff’s petition), “as (to present appellant, circumstances ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍here plaintiff’s prior damage result of the ordinary experience, light of and usual joint he and knee was unable to knee have foreseen that ought to speed up and leg facilitate ercise his so probably injured in a be second accident pelvis injured foot.” with month after his first testimony does show the time The accident; that his from his again second accident by ap would be retarded exercising second driving his car and in- negligence. pellant’s earlier We think our to whatever extent was knee neces- jured supported following conclusion in the clutch with his sary pushing left Ry. & P. Co. Bigham, Texas v. 90 cases: foot Appellant’s Tex. 162; Worth & Ft. 38 S.W. Tex. point Looney, Tex. Civ. third is overruled. City Ry. Co. Denver e.; Wm. 322, ref. n. r. App., 241 S.W.2d ap- Because of error ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍discussed under Thompson, Tex.Civ. Cameron we concluded that m.; ref. App., w. of the trial court should be Ry. Murray, 63 Tex.Civ. Co. & N. O. reversed and the case remanded for another 496; City Dallas v. App. 132 S.W. trial. Maxwell, Tex.Com.App., 248 S.W. Reversed and remanded. A.L.R. *4 On Motion for ap point on Appеllant’s second On rehearing appellee motion for peal refusing to erred in that the court contends that under Rule Rules permit appellee show that Procedure, of Civil it was error for us compensation paid been his workmen’s part to remand that of the trial court’s doctor’s bills for his ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍carrier judgment which decreed for dam $391.65 growing of second accidеnt. We out ages automobile. point. It is this true overrule on Supreme Our already passed Court has employee’s right of point adversely on the con- party is negligent third limited tention. Transрort Co., Fisher v. Coastal in excess 149 Tex. 230 S.W.2d 522. The casé 6a; paid him. Art. sec. Traders above cited was a negligence case. The General Ins. West Texas Utilities trial court rendered judgment оn' Co., 140 Tex. Never separate jury findings property as to danr-' this, in a suit like when the em theless age personal appeal On ployee suing common held that personal as to submissiоn improper negligence, law introduce fatally damages was defective be- showing before the that a evidence cause the court failed to include the ele- settlement has been with the work ments probability” of “reasonable as to compensation carrier men’s and the amount future and mental suffering. The Myers Thomas, paid. benefits Appeals, Court Civil 502, 186 143Tex. S.W.2d 811. held that the error did not affect the entire judgment and affirmed the asserts its third property damage, reversing only,' that when sought to so that another trial would be limited to a repair use thе measure of dam personal consideration injury dam- automobile, age to his the burden was on ages. Supreme But the Court held the him show that the value of such auto indivisible, issues were revеrsed the Court repairs. mobile not enhanced such Appeals, and sent the entire case Supreme Our -Court has held otherwise. n back for retrial. Four Justices showing Evidence the reаsonable and nec Supreme dissented, they dis- essary cost restoring personalty to its question sented on the whether the immediately prior fatally submission court’s defective. prima makеs out a facie case. The burden Apparently there no dissent on then shifts to a defendant to show that point now before us. repairs as made resulted in an enhanced Isaac, rehearing value. Pasadena State Bank Motion for overruled.