Wichita Valley Ry. Co. v. Williams

n fering, rendered, for, award consideration quire actually also ther remittitur? We titled by trial, incurred services, $5,300 cessive. 000, teenth poses without proposition. date hold that ity pellant Tex. Civ. that negligence in its preponderance approached down testified speed looked crossing ther the left looked and when he did tle ther, to about when vines which see right evidence to obstruct What we We remuneration reason of judgment not see the guard it, court erred far it passed feet of against which the he either a except a of the favor. conclusion and saw of about is overrule the might By would leave $720 and made an right overrule two-story testimony to see asserts that sum of enough past the corner for him to see. judgment. awarded. comment. said that a total if entitled deducted from looked to the App. 3 or 4 approaching, the corner per contention him for then have said support satisfied himself that no for view or all the have been he mental his had the if a train was reversal fence covered 538, 122 sixteenth 10 miles of the train until he no $3,300, "reasonably jury contrary crossing, approached year $20,000 miles house railroad, reaching about straight ahead, and that he after $5,300. got crossing. Rut Eddy a balance contention. to recover his loss of We are of the evidence, allowance anguish, pain, found medicines and jury fourteenth prevent applicable think evidence, guilty of the same per WICHITA made right; finding there was instructing a verdict relative to plaintiff, having he larger 6 feet so as rendered per at a time and proposition the finding 946.W. and when v.Co. up it reached the cat- When in fact taken excessive passed hour; he looked judgment to be Lowry (Tex. sum he hour, approaching not. two-story comer; years by the fifteenth Testifying to the then looked to that he his railroad high; than therefor, crossing Marshall, only $14,700 Having contributory prepared,to honeysuckle all, weight expected $2,000, but slowed that as found VALLEY RY. nothing the corner seeing Evidently crossing was, therefore and 'suf- is: the sum as hospital was en- was ex- in fact sum of capac- to the looked ample to re- was house about track Was $20,- thir- into jury fur- was der lost and have aat 6 S.TV. fur- fur- the ap of Whether he he he so ing. not in in (2d) safety approaching pressed, for judgment, W. 607. G., issues made request, and issues 2. Trial 3. Trial reference to art. eral to the special issues, 1. Trial Court of facts without general charge, mit issue both than Affirmed.' answers ative provision for mitted CO. v. 1925, art. then Negligence H. & When a case Where There can Under to the the determination negatively. similar 2190, providing for pleadings charge, acted of an Rehearing special issues. both was decided as one is submitted on want looking submission &wkey;>355(l) <&wkey;»203(3) <&wkey;352(l)—Both affirmative and to submit an WILLIAMS it becomes our S. A. submitted he court is not practice, reached the right (Rev. Civil and it affirmatively reasonably prudent differently exercise special injury. 2190). from the jury surroundings approached under et al. <&wkey;>56(l) R. pursuant and evidence when case be more than April 13, affirmatively and'negatively. Appeals On the Merits. submission is submitted to due care for his own reference before St. Denied is so to determine facts as to issues, pursuant —Under held —When cause submitted to determine. Freeman v. (No. RY. left right required issue both from favor of the of the due care for going upon must, ordered. facts of this conclusion of Texas. whether the the submission of May 18, 1928. —There and went 433.) art. case is practice pursuant CO. WILLIAMS of an Rev. Com. was in negatively. to Rev. consequences on required, issues not 2I901). issues, all jury, circumstances, must determine to affirm the injury. can be more plaintiff, S't. request, submitted the answers affirmatively issues made submit 1928. Eastland. sight, the cross- plaintiff. on a (Rev. and one plaintiff St. his own without safety 285 S. is the look- when 439 gen- sub neg- one un- art. ex- St. on all Digests Key-Numbered and Indexes all topic KEY-NUMBER <@^>For see same other cases REPORTER, 6 SOUTH WESTERN 2d SERIES (Tex.) Appeal &wkey;j2l5(l) company any stop 5. and error owed to to —Error predicated place inquired not be its and for raised in train objection presented brief not in to about in assumed in where issue submitted is- held charge. putting question employees sue charge whether in of train to train at failed predicated Error could be on a n controversy in proposition law raised permit by plaintiff, to time within which brief, where such was exercising diligence and to objection charge. to the trial court in to alight put again from train train before <&wkey;>352 <S&wkey;l062(l) Appeal 6. error and —Trial motion. involving backing (5) Submitting issue — <&wkey;> 12.Appeai 1062(1) con- error of and —Where injured being plaintiff’s knocked off held and curring acts submitting disputed error¡ more than injury, recovery one, cause of though could be had on issue, reversible where ijot but improperly other submitted. support ground (Rev. found another St. 2190). concurring 1925, 2189, Where acts two arts. injury were road of an to rail- injury action, personal submitting In issue passenger alighting from backing involving questions defendant’s negli- could be had because such act of of one injured being plaintiff’s and off knocked and gence, though improperly other 2190, error, St. arts. held under Rev. (cid:127)mitted. disputed than one issue more judgm'ent fact, but not where found reversible Appeal Court, Taylor ground negligence. from District Coun- another ty; Dong, Judge. M. S. ¡&wkey;>100 injured Damages plaintiff was 7. —That engaged teaching Williams, temporarily Action Arthur V. next did not affect showing right piead preparation, friend, others, against to facts for and the Wichita Val- profession. ley medical Railway Company. Judgment plain- for injury personal action, tiffs, appeals, In where and defendant Affirmed. plaintiff’s pleading that made to Thompson Walker, & Barwise and F. all B. planned cluded study medicine, pre- would be to but Worth, Kirby, King of Fort and & Overshin- injury, because of therefrom fact that n er, Abilene, appellant. for teaching temporarily engaged in Cunningham Hayden, W. plead prep- J. Cox all & to not to held affect making permanent Abilene, appellees. for aration profession. he was for a &wkey;»ioff Damages making 8. no rule HICKMAN, —'There A C. statement of na- J. calling injured particular -when oina’s this) opinion ture found in damages. standard of upon appeal of this court a former opinion in 3 W. making particular There is rule no call- (2d) 141, and in an the Commission engaged in which a Appeals questions to in answer certified personal injury damages. the standard of his appellees 116 Tex. 425. The parents, Arthur V. Williams and his but Appeal &wkey;>742(5)Appellant’s 9. error — “appellee” word used in brief that did not con- opinion injuries alleged proved pointed will to fine to refer Arthur Williams V. following error, only. no out where instruction After the remanded in accord- charge objected jury. to so confined opinion ance of this Appellant’s petition, alleging in his amended his brief that the that he had charge objected per- did not confine age years, suing reached the of 21 in his sonal that were own name instead of next friend. injuries proximately resulting or to from again jury upon special trial sues, is- alleged negligence point error, held out no jury judg- the verdict of the following where the instruction of the court ment was for rendered favor of the objected did so confine the $10,000 parents and in favor of his for Damages <&wkey;>132(8)$10,000damages — $471.75. boy’s painful below loss elbow of arm in- question presented The first in- decision juries, give requiring up plan study him judge, upon request, volves medicine, not excessive. held spe- when a case is submitted to the $10,000 damages year boy’s for 20 old loss issues, fact, cial affirmatively to submit issue both injuries causing of arm and other below elbow negatively. It arises in this great to requiring suffering, give up plan him to grounds case in this manner: One of the study medicine, hsid not excessive. negligence pleaded failed Rehearing. On its train a sufficient of time permit appellee safely alight to This the therefrom. <&wkey;>352(5)Question 11. Trial whether car- — was submitted to injured passenger owed rier inquired train at and time about in issue held assumed submitted. “Did defendant’s who were in personal passenger’s action fail said against company, question controversy of whether the switch in railroad topic Key-Numbered Digests cases see same in all KEY-NUMBER Indexes <5=»For tion? motion? Answer controversy in Civ. length whether is submitted to a sufficient plaintiff sonable following special issue: that when a in this case. Neither of these decisions holds it is fail to W. 268, court to tory negligence, W. a case submitted on think the that in.the submitted to and Those eases dealt on to hold that pellee, stand (T mage issues raised sions of eral Colorado & sues the switch before structed atively. ted on given whether train, Case. The issue of fact Hotel “Did the defendant an affirmative and a their exercise of ‘‘Did defendant’s The contention is made Appellant requested [1] The submit these issues. Had this 930; court do issue is 18 W. train before said should have also been each findings ex. v. Answer ‘Yes and them, Co., stop?” and in thus 6S.W.(2d)—28% submitted Arthur Williams the same rule our court they that, Texas Gamer Co. Northern submitted general the an party only the former the 198 S. Southern announce the Civ. placing upon either the Supreme ordinary readily apparent. issue both twice. and the stopped the if applying shall, of fact. this case a it was error not to submit both one Tex. the latter Trunk R. Co. v. of time within which V. to on such defenses as contribu difference they general charge. has App.) then ‘Yes’ or ‘No.’” is submitted unavoidable charge, appellant employees stop jury enable W. 808. here Texas or ‘No.’ requested determined only stop?” was, if of law there decided was Baker v. (Tex. believed the train. When a question requested was, question negative dispatch they Court care the train was requested, Fox 109 W. affirmatively rght Giearly, the instant with the “Did 240 S. W. that under the failed v.Co. Traction the reason for both reasonably a rule, court instructed Com. between ” the should Case S. a by exercising to passenger in the again put in mo- when to have all issues as where general charge, appellant lies upon special Williams contending have -been submitted was accident, etc., Ayres, submission Fox Dallas question alight áre as we under Rowe, to Under been submit applicable App.) submit each We 483; the find for was before submit the requested, requested, defendant called the Rowe the issue pose stop and sufficient the train in 83 Tex. do at 238 S. ployees permit 213 S. put power failed able him apply Gam (Tex. deci of a neg fact case fact by gen rea- Moberly 6S.W.(2d) the why up the ap- in is RY. CO. WILLIAMS authorities of errors in far contention is overruled. jury. back would not have fallen.” puted the construction tention is based appellee ted it facts without ever knock except back on that cient evidently ted twice than court such injury?” same such not have issue. ner in which the train was moved knocked It would the submission of all that was error the ordinary manner, I would not best caused the as er enactment of the sion of contrary ly, pellee not been tention discloses that it roneous conclusion proximate “I will ^[4] Appellant says that, [2, is the words, requiring usual, as upon special proximate believe the statute cited jury, the above issue should have been may judgment is, it 3] would be subverted rather dispatch, gently, follows that the failure to negligence is true. It is should I my evidence answers Toi special issues, Article know, in this facts. fallen had the train come back slow- put certainly have if it to duty and evidence when feet out and it and our minds should again announce such cause of contended injuries. the argument simplify alight ground, of time far a dual submission of have submitted the exercising then, night, sufficient manner and I would not have fallen. state had come back thereby reference been cause of the charge of In other in the that language: to the train a motion issues. Under such upon put contended to submit such law relative have if differently, the not be contended that therefrom could not have failure “Was alight the it I I would not have proximate within which to R. S. there appellee’s injuries, An the one that, know, ordinary manner, in an admission made jury injury. special lessen since the had come back been submitted practical issues made there motion, reasonable to the court. sup-port words, analysis that, did. proximate method of way of its based 1925, provides for therefrom before is no more reason all until doctrine, violent the under the undis to injury?” for, as have gently the that train came It is true can issues. since he would determine Had susceptible purposes cause of consequences usual, violent man- was not the effect than served issue, or issue to of this con of this con- of whether probability be but fallen. every enough This after or in the charging practice, cause it submis In permit We What twice. fallen. to en- slowly found - “Was suffi come that, pur fact was this oth- em the the ap- ap- My er- do so I REPORTER, WESTERN 2d SOUTH SERIES Rose street switch.” court’s train that he lows: brought question agreement jury agreed charged of the senger, 1, charged street ground plaintiff’s movement ‘Yes’ pellee gardless ground, overruled. “The “Did Appellant request or described evidence, main believe the conductor charge with if he was ‘No.’ that forward he would not at the of consent of how theory third of alighted of the train. fact, excepted ” plaintiff be the conductor Arthur V. that the conductor should switch, in that discharged gave in of violent plaintiff’s made. assumed that therefrom appellant’s passenger said to said that he question and was have been undue issue submitted it assumed defendant’s Williams This contention assume from the train at petition? The question and caused and was prominence brief might No. on November on injured, proposition to be that 3 of the is as fol- been the disputed train on on Rose Answer be weight on of the made pas- dis- the ure of re- pursuits.” juries purpose purpose making the ing surgery petition excepted to was: Northwestern Nat. tion Civ. v. & P. 311; Eastern Texas Elec. Co. v. Hunsucker et ror erly (Tex. the negligence, to diligence sonably before found “That he T. al., permit matriculated trial court refused); App.) Appellant complains of Civ. he has been 38 appellee’s same was his of was harmless. Thornton v. and devote Tex. 210 S. W. 289 App.) 230 Ry. cause of appellee, by exercising life finds Civ. work; Co. Ward also student in error another in a petition. overruling Life Ins. App. 402, (Tex. compelled his life S. W. et practice that 331W. medical (error Civ. ux. put negligence, The time within Co. v. on one 85 S. W. to less lucrative v. of App.) (error virtue injuries. of medicine and refused); Yoes schiol portion special excep medicine, Cathey (Tex. abandon said motion, Blasingame therefrom 211 W. ground action of refused); of with improp 819 Moody his of a rea S. Since hav- (er in- special exception The was: question We do not think of law raised specially excepts part “Defendant to that of presented to the paragraph plaintiffs’ of8 second amended charge. court further of are original petition alleged plain- where it objec- opinion that, if even is, tiff is a student of medicine—that wherein briefed, tion had raised alleged it is that said Arthur Y. Williams is a would have no error. student of medicine—for the it is reason that [6] The seventh submitted to and, issue medicine, immaterial if furthermore, is a he student any was as follows: he is recover entitled to damages any alleged failure to be able to “Did the defendant’s who were study medicine the future because same cause said speculative would be and too remote up suddenly violently be backed damage.” element of Arthur V. Williams had top step reached was about to reach question presented plead [8] The is one alighting, the coach from which he was if he any question and does not raise re had, thereby knock .said off of garding the evidence steps offered ground, said to the if he was knocked off? ” pleading. Answer The contention ‘Yes’ seems or ‘No.’ theory study to be based objections lodged ques- practice represented change One and in this medicinte tion was profession; had, by that it submitted than one dis- more puted assignment acts, profession teaching; issue fact. This is sus- own chosen the speculative disputed problem tained. There were at least two is- that it would be appellee sues of fact submitted in this one issue. This atical as to whether could earn more money comply physician surgeon method of issues does not aas than he provisions of articles 2189 and as teacher. The contention R. S. 1925. The mailing par authorities this is no overruled. There rule carefully calling engaged studied this court ticular and cit- in which a Estep Bratton, ed in the case 298 at the of his S. W. the standard of his (error refused). Upon authority damages. M., Ry. 145 Clair, K. & T. Co. v. St. 21 decision, App. 345, cited, Ry. 666; the cases there this Tex. Civ. 51 W. S. v. assignment App. Long, 882; is sustained. 26 Tex. Civ. S. W. ease, however, The Hardy should Dallas reversed separate Consolidated Elec. Co. v. 1053; on this account. There were two- Civ. 86 W. San Antonio grounds Crisp (Tex. and distinct relied Traction Co. v. by appellee Scally Co., submitted to the T. & One W. Garratt Cal. grounds improperly App. of these 138, 104 P. 325. presented, ground, appellee, according allegation, but the other fail- viz. the The geon. will forever being icine closes the ployees minds the award facts insists that damages, any, below the for the money, compensateArthur He proved. making for a talent is as pose sive. 20 teacher taining, sue No. law is a gested proposition graduate of Simmons able the leged alleged negligence.” carefully considered and firmed. ied in question the fact that teaching ambition for which instructions did because it court’s there the “Did the defendant’s “A All [9] The ^[10] years was awarded already confine the in a follows: showing confusing made that The evidence shows that propositions not is a matter It is practice objection lodged by appellant to the in the if on the caused obtaining consisted at that does not affect his of the train in to the submission of the its motion very tenth medical laudable ambition to paid elbow. the Abilene fact referred to what proved, and urged points matriculated as prevent age issue permanent profession. he was proposition. part proximately now him On different one the submission of suffered and uncertain injuries pleadings. was not the court should that the teaching medicine and Other in the V. Williams $10,000 damages. preparation college. money Rehearing. court reading, out no great he felt him from alight. temporarily high great importance, and cash, $125 College, loss discussed following the injuries alleged and injuries alleged loss of rehearing time trial court assumed are pain and excessive. error, judgment him?’ Rose resulting proposition. school. He that he of one does not raise ‘What Besides per court will be appellee prepare to the one student Question in not overruled. complaint for the of his become surgery. was self-sus realizing pleading street appellee was issue embod- for the an arm month as and its em because time to en fail to question of of his engaged amount reasonably who. were erroneous, possessed appellant suffering. not refer plead this, is exces confining physical himself of med- said train at the switch in had he was To injury, wds No. 4 arms been pur sug- sur- The His our BS.W.CJd) af- -is al- a a RY. CO. injury, submitted, on the of ing. ure to in the would have injured Failure another soon. sumed have injuries. that, notwithstanding ted. We believe ligence in the manner in started. These to cause that his ner and ner and ted alight therefrom, still he pellant ly considered; but we believe that the and been arose, if at understand mitting much ment sonably moving sufficient for case of two concur therein. The about in that issue was and miliar, the^employees ercising again put in motion? Answer ‘Yes’or ‘No.’ and the alight from argument other issues in swers to the operatives We have ^[12] starting permit plaintiff any that, having ordinary put motipn This injured, except been the words, appellee’s of the trial start, usual theory that, It motion for vigor that, appellee having Injury v. WILLIAMS findings manner influenced owed way issue No. train without motion is therefore overruled. way injuries reason that had way The effect on this negligence was'improperly and will the train too question relating all, how the admitted that he would not have but the train been moved also carefully submitted, been any duty concurring in which manner with backing stating as a matter of law on account two of fact ordinary manner, of time isi argued rehearing they did, question, Arthur able ,and issues makes form negligent fon the Kehad such failure could submitted. occasioned injuries. the fact that the come the train a considered the train testimony appellee’s former was before said for the time made not, result from soon, positive should be submitted. two acts a case of he had and manner V. long copied, controversy it was started which same but are unable to which he was back has we to our Williams, concurring as well as acts of whether jury! having enough not have been judgment up been within testimony himself; makes out act of start cause of an in the either. came slowly negligence. could have because minds, concurred failure appellee’s train was unable and with admitted affirmed, properly inquired careful- its admit is but latter usual bads, judg- man man fail neg was. acts rea- too an- ap- ex- fa ” as- its

Case Details

Case Name: Wichita Valley Ry. Co. v. Williams

Court Name: Court of Appeals of Texas

Date Published: Apr 13, 1928

Citation: 6 S.W.2d 439

Docket Number: No. 433.

Court Abbreviation: Tex. App.