57 S.W. 974 | Tex. App. | 1900
This is a suit for damages for personal injuries. In the court below appellee recovered a judgment for $1900. The facts show that appellee was a passenger (mail messenger) upon one of appellant's passenger trains on the 10th day of September, *5 1899; that when said train reached Grand Lake siding on appellant's road, at about 3:35 a.m. on said 10th day of September, it ran in on the siding because of the switch being open or set for the siding, and collided with cars standing near the north end of said siding, and in said collision appellee was injured. The switch was not left open by any of the employes of appellant who were operating the train on which appellee was riding, nor is there any evidence tending to show that any employe of the appellant who was present at the time and place of the accident had anything to do with said switch, or knew or had any reason to believe that same was not properly set. If the switch had been properly set the accident would not have occurred.
As a result of the collision appellee's head and face were cut and bruised, one of his teeth was knocked out, his body was bruised and his arm was injured, and on account of the injury to his arm he lost seven days' time. His brain and nervous system were injured, and he suffered and still suffers mental and physical pain as a result of said injuries, and there is evidence going to show that the injury to his brain and nervous system will continue to develop and grow worse. He has kept the position he had at the time of the injury, and is earning the same salary, and is able to perform his work in a satisfactory manner.
The only allegation of negligence in the petition is as follows: "That without plaintiff's fault or negligence the said defendant and its servants negligently run said passenger train, on which plaintiff was traveling, against and into a car on the track of said railroad at a place on said railroad called Grand Lake, which is in said Montgomery County, and caused a violent collision between said passenger train and said car, and by said negligence and collision did seriously and permanently injure plaintiff, to his great damage." The injuries received by appellee are alleged as follows: "That by said negligent collision plaintiff was thrown against parts of the car in which he was riding, and he was knocked down and his head was wounded and cut, his teeth were injured and one of them was knocked out, and his head and body were battered and bruised, his spine, chest, and lungs and nervous system were shocked and injured; and thereby defendant inflicted on plaintiff physical pain and mental distress and anxiety and disfigured his mouth and teeth, face and nose, and decreased his capacity to earn money, and increased his medical expenses, and temporarily and permanently injured his eyes, his health, and his strength, and shortened his life."
Appellant's first and second assignments of error are as follows:
"1. The court erred in permitting plaintiff, over defendant's objection, to ask plaintiff's witness, Dr. A.L. Hathcock, the following question: `The brain is one of the nervous centers. If a blow is received on the head, from which concussion occurs at the time, and he recovers from that, is it not a fact that where there is concussion of the brain that ordinarily the party recovers after a certain length of time, and for maybe two months feels almost as well as he did before, and then it comes on him again and develops?' To which question and answer *6 thereto, whatever it might be, defendant objected, because it did not state the case made by the facts, because there was no such evidence before the jury, and was irrelevant, and because it was leading. The court overruled the objections and the witness was permitted to answer as follows: `Yes, sir, that is the history of this case, I believe. If that is the result and it comes on that way, and a party has a tingling sensation in the limbs, it may be considered as an indication of concussion of the brain, with a reservation that it may be due to something else. That is not a symptom of progressive paralysis — it is continuous paralysis, but is not a symptom of it. It may or not be.'
"2. The court erred in permitting plaintiff, over defendant's objections, to ask plaintiff's witness, Dr. A.L. Hathcock, the following question: `If any one is suffering from concussion of the brain or injury to the brain, is it not a fact that upon excitement or work the symptoms are more marked than if he had been at rest and quiet?' Defendant objected to said question, because it was leading, and the court overruled the objection, and over defendant's objection the witness was permitted to answer as follows: `Yes, sir; I would expect the symptoms to be worse after mental excitement or work.'"
We think the questions set out in these assignments are clearly leading, and appellant's objection thereto should have been sustained. Each of these questions may be answered "yes" or "no," and the questions themselves suggest the answers. Bridge Co. v. Cartrett,
The third assignment of error is as follows: "The court erred in its charge to the jury in this: In giving that part of the charge containing the following language, to wit: `And a failure of any employe of such railroad company charged with the running of its trains, or the care of its tracks, to exercise that high degree of care is negligence on the part of the company.' This is erroneous, because it submits to the jury the issue of whether or not the defendant was negligent with respect to the care of its tracks; an issue which was not raised either by the pleadings or the evidence, and said charge is wholly without pleadings or facts to authorize it, and must have misled and confused the jury to defendant's prejudice."
The writer is of the opinion that this assignment should be sustained. Given every reasonable intendment, the allegation of negligence in appellee's petition would only include the negligence of appellant's employes operating the train at the time appellee was injured, and possibly the negligence of any employe who was present at the time of said accident and whose duty it was to have attended to the throwing or setting of said switch, but it would not include any negligence of defendant *7
company in failing to properly care for its track, nor would it include any negligence on the part of any of defendant's employes not connected with the running of the train on which appellee was injured, and which did not occur at the time of the accident. It is unnecessary to cite authorities on the proposition that the charge of the court should be confined to the issues made by the pleadings, and that it is error to charge upon issues not raised by the pleadings. Appellee contends that the petition having alleged that the injury was caused by a collision, it was competent under such allegation to admit proof of any character of negligence on the part of appellant or its employes which was the proximate cause of the collision, and that any character of such negligence became an issue under such allegation, and in support of this contention cites the cases of Railway v. Wilson,
The portion of the charge complained of in the fourth assignment of error is also objectionable upon the ground that it raises an issue not made by the pleadings, in that it authorizes the jury to inquire as to whether or not the defendant had discharged its duty in reference to the care of its tracks and switches.
The trial court also erred in instructing the jury that in determining the amount of damages to which plaintiff was entitled they might look to any injury to any part of his person. The petition having specifically alleged the injuries received by appellee, the jury should have been confined *8 in their estimate of the damages to the injuries so alleged. This instruction was especially harmful, because under it the jury were authorized to consider the injuries to appellee's arm, which injuries were not alleged in the petition, and are shown by the evidence to have been the cause of the seven days' loss of time, and was most probably one of the items of damages which composed the amount found by the jury.
If any errors are shown in the remaining assignments contained in appellant's brief they are not such as are likely to occur upon another trial, and we deem it unnecessary to discuss said assignments.
Because of the errors in the charge, the judgment of the court below should be reversed and the cause remanded for a new trial, and it is so ordered.
Motion granted. Judgment affirmed.
Writ of error refused. *9