128 S.W. 166 | Tex. App. | 1910
The appellee at the time of his injury, and for some years prior thereto, had been engaged in the float business in the city of Marlin, and had frequently removed goods from appellant's cars for the purpose of delivering them to their owners. He was acquainted with the general custom and regulations of appellant in regard to the removal from its cars of such goods as were received by it for delivery in the city of Marlin. Appellant's main track ran through the city and on each side was a side track, on to which cars to be loaded or unloaded were switched and left standing for that purpose. On the day of the injury a carload of furniture had been placed upon one of these side tracks for the purpose of being unloaded — being in the place where cars were usually placed for such purpose. The appellee went to the appellant's station agent, paid the freight on the furniture, as he was authorized to do by the owners of same, and drove his float up by the side of the car and went inside with two of his hands for the purpose of unloading the furniture. While he was so engaged, appellant's servants ran an engine in on said side track and pushed another car on said track against the car in which appellee was. At this time appellee was lifting down a package of mirrors. The jarring of the car caused him to fall, the package of mirrors falling on him and rendering him unconscious for some time.
In his petition appellee charges negligence on the part of appellant, and alleges that without any negligence or fault on his part, he has suffered serious and permanent injuries, producing incarcerated hernia, which necessitated a painful and dangerous operation, serious and permanent injuries to his kidneys, concussion of the spine, injuries to his nervous system and his heart, and that his said injuries were serious and permanent. That as a result of said injuries he was confined to his bed for several months, and suffered and still suffers and will continue to suffer great physical and mental pain during the remainder of his life. That he is 47 years of age, and that his earning capacity has been greatly reduced. He further alleges that he has been obliged to pay and become liable to pay for medical attention the sum of $550, and was compelled to be nursed by his wife at the reasonable cost of $200.
The jury awarded appellee damages in the sum of $2150. Appellant asks that this case be reversed upon its assignments of errors hereinafter discussed.
1. Appellant assigns as error the overruling of its special exception to appellee's petition in that it did not describe the injuries received with sufficient particularity. As the record fails to show that any of appellant's exceptions were called to the attention of the court, or were ruled upon by the court, they must be treated as waived. To the same effect is the twelfth assignment of error.
2. In its second and third assignments of error appellant complains of the action of the court in overruling its motion to exclude the testimony of physicians who testified that appellee was suffering *155
from Bright's disease as a result of the injuries received by him, the ground of said objection being that appellee had not alleged that he was suffering from Bright's disease as a result of such injuries, and that the evidence did not show that such disease did, in fact, result from such injuries. This evidence as to appellee's having Bright's disease was first brought out by appellant, and no objection was made to such part of it as was brought out by appellee on reexamination. Under such circumstances, we would not hold that it was not an abuse of the discretion of the court to refuse to withdraw the same from the jury. (Missouri Pac. Ry. Co. v. Lamothe,
3. Appellant assigns error upon the refusal of the court to give special charge set out in its fourth assignment of error. We think this charge is objectionable, in that it in effect charges the jury that if appellant's servants looked along the track before going in on the same, and did not see any person or team, that this would be the exercise of ordinary care. The jury might have so found, but this was not the only deduction that a reasonable mind could draw from such facts; hence, it was not for the court to instruct them, as a matter of law, that such acts would constitute ordinary care. Galveston, H.
S. A. Ry. Co. v. Roberts,
4. Appellant's fifth assignment of error complains of the following paragraph of the charge of the court: "If the plaintiff was not aware of the approach of said train, he would be justified in assuming that the defendant company would not expose him to danger by backing its engine and train of cars against the car in which *157
he was working, without timely warning." We think that this is the law under the facts of this case (Missouri P. Ry. Co. v. Columbia,
The sixth, eighth and ninth assignments of error are of like import as the fifth and seventh, and we do not think are well taken.
5. The tenth assignment brings us to the consideration of another proposition. Appellant complains of the action of the court in allowing the appellee to testify that the services of his wife in nursing him for the three months that he was confined to his bed, were worth from $150 to $200, and in allowing the attending physician to testify to the same effect; the objection being based upon the legal proposition, asserted by appellant, that it being the duty of the wife to render such services to the husband without pay, he can not recover therefor, and upon the further proposition that, inasmuch as appellee did not pay his wife for such services, he can not recover of appellant therefor.
We do not think that either of these contentions are sound. That the circumstances of this case rendered the services of a nurse necessary is not questioned. Appellee, during all of the time that he was being nursed, was entitled to the services of his wife in attending to their household affairs, and had she been prevented from attending to the same by injuries wrongfully inflicted upon her by appellant, appellee would have been entitled to recover therefor. If she *158
was prevented from attending to such duties by the injuries wrongfully inflicted, not upon her, but upon appellee, why should he not be compensated for her loss of services in attending to household duties in the one case as well as in the other? And if he is entitled to recover in this indirect way, why not directly for the reasonable value of her services as a nurse? Appellant contends that it is against public policy to compensate a wife for the discharge of her wifely duties. If the wife had been indifferent to the suffering of her husband, and refused to nurse him, thereby compelling him to hire a stranger to nurse him, it would not be contended that he could not recover the reasonable wages that he had paid for such services. Is it against public policy to allow the same recovery for the same services rendered by a loving wife? We think not. There are a few decisions that uphold the contention of appellant, but we think the weight of authority, and certainly, to our minds, the better reason, is the other way, and such seems to be the law in Texas, whatever may have been held in other jurisdictions. Missouri, K. T. Ry. Co. v. Holman, 15 Texas Civ. App. 16[
As sustaining its contention that damages are based on compensation alone, and therefore the value of services rendered by a physician or nurse can not be recovered where no charges are made, appellant cites several cases from other jurisdictions. As holding a contrary doctrine, upon the ground that such gratuity is for the benefit of the injured, and can not be claimed by the party causing the injury, see Ft. Worth D.C. Ry. Co. v. Walker, 48 Texas Civ. App. 86[
6. Appellant's thirteenth and fourteenth assignments of error present objections to the charge of the court in submitting to the jury the medical bill incurred by appellee by reason of his injuries. The pleading and the evidence showed that appellee had incurred such bill, but had not paid the same. Appellant contends that as such services were rendered more than two years before the trial of this suit, appellee was not legally liable to pay the same, and therefore could not recover the same off of appellant as an item of damages. Appellant cites, as sustaining its contention in this regard the cases of Bering Manuf. Co. v. Peterson, 28 Texas Civ. App. 194[
7. The fifteenth and sixteenth assignments of error relate to the charge given and the charge refused as to appellee's previous rupture, as to whether or not the failure of appellee to wear a truss was negligence on his part, and the proximate cause of the injury received. The evidence shows that appellee had been ruptured some twenty years prior to the injuries for which this suit is brought. That it was not absolutely necessary for him to wear a truss; that sometimes he wore a truss and sometimes he did not, and that he was not wearing a truss at the time of the injury. At the request of appellee the court gave the following special charge: "You are charged that although you may find that plaintiff was not wearing a truss on the occasion of the alleged injury, if any, yet such failure to wear a truss at said time would not be regarded as such act of negligence on his part as would preclude a recovery herein, if he is otherwise entitled to recover under the charge of the court." This assumes that the failure to wear a truss on that occasion, "if appellee was otherwise" entitled to recover was, as a matter of law, not negligence on the part of appellee, or if it was that it was not the proximate cause of the injury. If this be not true, it is a charge on the weight of the evidence on a material matter, and calls for a reversal of this case. We confess to considerable difficulty in arriving at a conclusion as to this matter. In our judgment the saving clause in this charge is the language: "If he is otherwise entitled to recover under the charge of the court." The court's charge distinctly informs the jury that negligent acts of appellant, if any, must have been the "proximate cause" of the injuries received by appellee. Appellant did not allege that the injuries to appellee were augmented and his suffering increased by reason of the failure of appellee to wear a truss, but did allege that appellee's failure to wear a truss was the proximate cause of his injuries. In other words, that he would not have been injured at all had he been wearing a truss, and that his previous ruptured condition made it negligence in him to fail to have on a truss at the time he was injured. The language of appellant's answer as to this matter is that the injuries, if any, were received "by reason of the fact that plaintiff was not at the time of the alleged injuries wearing a truss in order to protect himself against any jars or strains that he might incur in the performance of his duties as drayman." (Italics ours.) His *160 injuries were not caused by any strain in lifting or carrying furniture, nor by anything done by him "in the performance of his duties as drayman." The appellee's petition alleged that the fall received by him, and the furniture falling on him, "produced incarcerated hernia, which necessitated a painful and dangerous surgical operation." If it is true that these things "produced" the incarcerated hernia, and that they were brought about by the negligent acts of appellant, without negligence on the part of appellee, what matters it that he was negligent in failing to guard against an injury which might have happened to him in the performance of his duties as drayman, without any such negligence on the part of appellant; but which did not so happen? "If otherwise entitled to recover under the charge of the court," it could only be because the jury found that the things alleged by appellee produced the injuries complained of, including incarcerated hernia; and that these things were the result of the want of ordinary care on the part of appellant, without carelessness on the part of appellee. If these things be true (and whether they were true or not was left to the jury under proper instructions), we think it follows, under the evidence in this case, as a matter of law, that the appellee being without a truss, was a condition and not the cause of his injury. For example: The catcher in a baseball game usually wears a mask made of heavy steel wire to protect himself against injuries that might occur in the performance of his duties as catcher. It might be even gross negligence for him to leave off such mask while the game is progressing, and if he should do so, he could not recover for injuries received from a ball being thrown by the pitcher in the usual manner. But if, during the progress of the game, one of the players should assault him and "swat" him across the face with a bat, in a suit for damages it would not lie in the mouth of the party committing the assault to say to the assaulted party: "If you had been wearing your mask, you would not have been injured by my assault."
The evidence in this case does not show, or tend to show, that the injury to appellee was any greater than it would have been had he been wearing a truss. But if there had been such evidence, that fact, under the circumstances of this case, would not have shown that the failure to wear a truss was the efficient or proximate cause of his injury. If there intervenes between a remote cause and the injury a distinct, unrelated and efficient cause, or if no injury would have occurred, notwithstanding the condition, but for such independent cause, such remote cause does nothing more than furnish the condition, and can not be held to be either the sole or concurrent proximate cause. If the action of the appellant in backing the cars in on appellee and thereby causing the furniture to fall on him, was such that he ought to have anticipated, then it was his duty to do what he reasonably could to lessen the injury that might be inflicted on him by such acts. But if such acts were wrongful, it was not his duty to anticipate them, any more than it would be the duty of a man to wear steel armor to prevent or lessen the injury that might be inflicted upon him by the bullet of one committing an assault upon him. For a further discussion of this subject of condition and *161
remote and proximate cause, see Houston T. C. R. Co. v. Maxwell,
The remaining assignments of error assail the judgment on the ground that the same is against the preponderance of the evidence and is excessive. The verdict was for $2150, and does not appear to be excessive. As to the preponderance of the evidence, that was a question for the trial court. There being sufficient evidence to sustain the verdict, and no error being found in the record, this case will be affirmed.
Affirmed.
Associate Justice Rice did not sit in this case
Writ of error refused.