Posener v. Long
Posener v. Long
Opinion of the Court
This was an action by Wesley A. Long and wife, Katie Long, against Max Posener for damages arising from personal injuries inflicted upon Katie Long by reason of a collision with an automobile driven by the defendant, Posener. At the time of the accident Mrs. Long was standing at the intersection of Myrtle avenue and Willow street, in the city of El Paso, for the purpose of taking passage on an eastbound street car. She was standing on the south side of the street car track, near the rail, and was in a proper position for taking passage upon the car. Posener -was driving an automobile on Myrtle avenue, going in a westerly direction, on the left and south side of the street, and drove his automobile against the said plaintiff, causing injuries to her left side, hip, and leg, and it was also averred that her right leg was bruised and *592 lacerated, and that she had become a cripple ior life.
We find that the said Katie Long was injured through the negligence of the appellant, without any contributory negligence on her part, and by reason of her injuries the plaintiffs have been damaged in the sum of $3,000, the amount of the judgment.
The evidence fails to disclose any injuries to the right side of the plaintiff Katie Long, and it is contended the verdict is unsupported by the evidence in this: That at the time of the accident she was standing in the street, facing in a northwesterly direction, with her right side in a northeasterly direction, from which latter direction the appellant approached her; that her injuries all appear to have been inflicted on her left side, which was in an opposite direction from that in which she was approached by appellant; and that it was therefore a physical impossibility for said injuries on the left side to have been inflicted by the automobile.
This assignment must be overruled. Appellant’s contention is founded upon the false premise that the evidence discloses she was standing facing in a northwesterly direction when the automobile struck her; whereas it appears from the evidence that just before the car struck her some one shouted to her, and the jury was warranted in finding that when her attention was thus attracted to the approaching automobile she turned abruptly, and was thereby, struck on her left side.
Pertinent to a consideration of this assignment, we quote the following testimony:
Plaintiff Wesley A. Long testified: “She has not done her housework since she was injured. Before she was injured, she done all the work that was ever done. She was always strong; I don’t think she was ever sick a day in her life; we have been married 10 years; always done her own work. I don’t suppose she has hired a month’s washing done out of the 10 years we have been married; she has always done it herself. X don’t know how I could fix any value for her loss of time; I cannot fix any value. It is valuable to me. It is bound to be valuable to me. She has not been able, to do any work since the accident; she has not been able to do anything. The accident occurred on the 21st of July, 1911.”
Mrs. Long testified: “I have not done my housework since I was injured; I have just done what I am able; I cannot do any hard work, because I ain’t able to get around on my limb; I cannot stand up long, because my lég is too weak for me to stand. My leg is not strong enough to stand up on. I never had any trouble with my leg before the accident. * * * I did my own housework before the accident. My husband is a poor man; he does not own any property. 1-Ie has no income outside of his wages on the T. & P.”
In view of the testimony quoted, it is well settled the court did not err in submitting the elements of damage above referred to. Discussion of the question would be fruitless, and we simply refer to the authorities. See Railway Co. v. Lacy, 86 Tex. 244, 24 S. W. 269; Railway Co. v. Vance, 41 S. W. 167; Railway Co. v. Younger, 40 S. W. 424; Mabrey v. Railway Co., 92 Mo. App. 596, 69 S. W. 394; Railway Co. v. Edwards, 91 S. W. 640; Railway Co. v. Cruseturner, 98 S. W. 425; Railway Co. v. Johnson, 38 Tex. Civ. App. 322, 85 S. W. 476.
If it be conceded that the question was *593 leading and suggestive of tie answer elicited, yet we do not regard tie same as reversible. In our opinion it was neitier calculated to cause, nor did it probably cause, tie rendition of an improper judgment, and in suei case it cannot be treated as reversible. Rule 62a for the government of tie Courts of Civil Appeals (149 S. W. x).
It was, of course, incumbent upon Mrs. Long to exercise due care for her own safety while standing in the street waiting for the car. She seems to have been looking towards the city, from which her car would approach, and. since she was standing upon the south side of the street we cannot say, as a matter of law, that she was guilty of contributory negligence in not having discovered the approach of appellant’s car, which was being driven upon the wrong side of the street, considering the direction in which he was going, contrary to the ordinance of the city and to the established and recognized rules of the road.
Finding no error, the judgment of the lower court is in all respects affirmed.
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