Houston & T. C. Ry. Co. v. Fox
Houston & T. C. Ry. Co. v. Fox
Opinion of the Court
Appellee, Fox, brought this suit against the Gulf, Colorado & Sante Fé Railway Company and the appellant, Houston & Texas Central Railway Company, to recover damages for personal injuries sustained by his wife, Mrs. Mary Fox, while she was a passenger en route from Celeste, Tex., to Bertram, Tex. Each of the defendants answered by general demurrer, general denial, and pleas of contributory negligence on the part of the appellee’s wife. A jury trial resulted in a verdict and judgment in favor of appellee against the appellant for the sum of $10,000, and in favor of the Gulf, Colorado, & Santa Fé Railway Company. From the judgment against it, the appellant appealed.
No question is raised about the pleadings and further statement of them is unnecessary. The evidence is sufficient to show that on or about the ,22d day of December, 1910, Mrs. Fox, appellee’s wife, bought a through ticket at Celeste, Tex., entitling her to passage from that place over the road of the Gulf, Colorado & Santa Fé Railway Company to Dallas, thence over appellant’s road to Hearne, Tex., where Mrs. Fox changed cars to continue her journey. As the train approached Hearne, which was about 2 o’clock in the night, the station was announced and the train stopped. Mrs. Fox, accompanied by her little boy about 10 or 11 years of age, arose from her seat and started to leave the train. After taking a step or two towards the ear door, the train was negligently moved with a sudden jerk or lunge forward and *923 then backward, almost, at the same instant of time, which threw Mrs. Fox off her balance and to the floor of the car, seriously injuring her. She testified: “I was thrown down and I fell forward in kind of a careen. X lay there some little bit of time. I felt a severe pain strike me, especially in the small of my back, and it seemed to me like it run all over me, and it seemed to me like it hurt me all over; I lay there for some bit of time, kind of numb or something; at the same time I didn’t hardly realize what was going on for some little bit of time; my little boy came to me and he had hold of me the first thing I knew, and he says, ‘Ma, are you hurt?’ I told him * * * I was nearly killed.” Mrs. Fox further testified that her son helped her up and that they went out of the car and into the station house, where she stayed until about 11 o’clock forenoon of that same day, when she took another train and continued her journey to Bertram, still suffering from her injury. Mrs. Fox was 51 years of age at the time of the accident, and was a strong and vigorous woman for her age.
(1) “Now this woman might have been suffering with a pain in her back right at the time you took those answers that might have resulted in the condition she is in, may it not, Doctor?” To which the witness replied, “There might be some pain.”
(2) “Isn’t it true, and isn’t it an accepted theory among doctors, and observation by all good physicians, that an injury to the spine might go along for months before it developed into a serious injury, practically unnoticed by the parties themselves, and then develop into a serious injury?” Answering this question, the witness said: “In a normal life and a healthy person it would be apt to go along a good while.” It seems that it was the theory of the plaintiff that his wife from the date of the accident suffered with her back and head intermittently, but on account of her strength and good general health the effects of the injury complained of were slow and gradual, resulting finally in the complete and permanent destruction of her health. On the other hand, the defendant’s theory seems to have been that Mrs. Fox in fact received no injury of any consequence at the time alleged; that the claim of injury at that time was an afterthought; that the emaciated and feeble condition of Mrs. Fox, apparent at the date of the trial, was due wholly to some cause arising shortly before or about the time of the institution of this suit other than the alleged sudden violent movement of defendant’s train at Hearne, and offered testimony in support of this theory.
In this connection Dr. Pearson, being called by the defendants, testified: “I made an examination last year of Mr. and Mrs. Fox, at their home, for life insurance; Mrs. Fox’s appearance then, as to health and strength, was good, normal, I /would think. I think it was about the middle of April of last year I made this examination. I had called and seen Mrs. Fox before this transaction; at that time there was no difference in her general appearance as to her health and strength and to what it had been before that time that I could see; at that time, while I was making the examination, Mrs. Fox nor Mr. Fox did not say anything about the injury which Mrs. Fox claimed to have received. In the conversation they said they were each in good health. They asked me if I thought they would pass, and I said they would; it is hard to remember just exactly what they said about the state of their health, but, in substance, one of them asked me if I thought they would pass, and I said, ‘Sure you will pass. Xou could carry any amount of insurance you are able to pay for, so far as your condition is concerned, if your age would allow.’ * * * At that time I did not observe myself any indication, from her appearance, of any disease or hurt and received no information from either at the time of any disease or hurt.” The testimony sought to be elicited by the questions under consideration was clearly competent in view of that offered by the defendants, and we do not understand that appellant contends that it was not.
The sixteenth, seventeenth, eighteenth, nineteenth, and twentieth assignments disclose no material error, and will also be overruled.
Dr. Eugene Williams, among other things, testified that he made an examination of Mrs. Fox on the 14th day of May, 1911-, and found tenderness upon pressure up and down *925 the spinal column, “especially at the fifth lumbar sacral vertebra extending up to the eighth dorsal vertebra and found a lateral curvature of the spine to the right; that the last time he examined Mrs. Fox was the night before the day he gave his testimony, and that while examining her and making a pressure of the spine her pulse rate increased from 10 to 15 beats; that when he was first called to see Mrs. Fox she didn’t look like she was sick, looked like a tolerably fleshy woman of robust health, but that she did not look so well at the date of the trial; that the different times he had examined Mrs. Fox she complained of the same tenderness in the back and complained of a burning up in the top of the head”; that pressing upon a painful nerve would naturally make a person breathe a little faster and would make a reflex action of the heart; that a person cannot feign that condition; that he would call that symptom a subjective symptom. This witness further testified: “If a person was standing up and not expecting it and there should be a double movement of the— Say a person was standing on this table here and without expecting the table to move, and the table should be suddenly jerked forward or backward, and when the table jerked forward they tried to catch something, and when it jerked back the party is thrown to the floor and felt a severe pain at the time and then momentarily loses her mind, kinder stunned or addled or something, 'and then in a very short time the party gets up and they begin to suffer all over and the pain finally, settled in the back, and that condition continues on getting gradually a little worse, as to what would be the probable result of an accident of that kind with reference to producing injury to the nervous system, I would think it is very likely the accident would cause a deranged condition of the nervous system; that if he is given a history of an accident as above detailed, and if on the 14th day of May he found such person in the condition he found Mrs. Fox in on that date, and if he had nothing else except a history of this accident and the pain more than the suffering, he would say that it was due to the injury that she received ; that an injury of that character is sometimes rapid and sometimes slow in developing ; that he did not think there is anything unreasonable from the standpoint of a physician that a person receiving an injury like the one detailed on or about the 22d or 23d of December, 1910, should go along and not lose any great amount of flesh .until along in May of the following year; that he did not think it anything uncommon to find, in a person injured as indicated, the results found in Mrs. Fox; that his honest judgment was that, while Mrs. Fox’s condition would not kill, she would never get well; that he be- ■ lieved her condition permanent.” To the same practical effect is the testimony of Dr. Smith strongly corroborated in many particulars by the testimony of Dr. Gregory.
The jury were the exclusive judges of the credibility of the witnesses and the weight to be given their testimony, and no matter what might have been the views of this court in regard to the same as an original proposition, the fact remains that there is substantial testimony which tends to support the verdict. Manifestly there is not such a preponderance of evidence against the verdict, either as to the liability of appellant or the amount thereof, as to justify this court in saying that it is clearly wrong. So that, whether appellee’s wife was injured through the negligence of appellant substantially as alleged, and that appellee was damaged thereby in the amount awarded, were questions of fact for the determination of the jury. Many verdicts based upon no stronger testimony than that found in the record in this case, and for as large or larger amounts, have been upheld by the courts of this state. The testimony is sufficient to warrant the jury’s findings, as evidenced by their verdict, that Mrs. Fox, as a result of the injury inflicted upon her, is suffering with neurasthenia, a serious nervous disease; that she has and will continue to suffer much physical and mental pain; that before the injury she was a strong and healthy woman; that at the date of the trial of this case her weight had been reduced as a consequence of her injury from about 158 pounds to 107Y¡¡ pounds; that she was very feeble; and that her condition is permanent.
We believe it is our duty to affirm the judgment of the court below, and it is accordingly so ordered.
Reference
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- HOUSTON & T. C. RY. CO. v. FOX Et Al.
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