Opinion
April 21, 1913. Rehearing Denied May 1, 1913.
Appeal from District Court, Smith County; R. W. Simpson, Judge.
Action by Marvin Pruitt against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.
Marsh McIlwaine, of Tyler, and E. B. Perkins and D. Upthegrove, both of Dallas, for appellant. W. H. Clark and W. T. Strange, both of Dallas, and Lasseter McIlwaine and N. A. Gentry, all of Tyler, for appellee.
Appellee while In the discharge of his duties as a brakeman on one of appellant's trains suffered injury to his person, as the result of a collision between that train and another one of appellant's trains, due to negligence on its part. As damages he thereby became entitled to, he recovered the judgment for $8,000 from which this appeal is prosecuted.
At the time the collision occurred, appellee was sitting in the cupola of the caboose forming a part of the train, with his back to a window in said cupola. The force of the collision was great enough to throw him against, and the upper part of his body through, the window. He claimed, and there was testimony sufficient to support a finding in accordance with his claim, that as a result of his back striking the sill of the window he suffered serious and permanent injury to his spine.
The court instructed the jury, if they found for appellee, in assessing his damages to take into consideration the nature, character, and extent of the injury he had received, the pain he had suffered as the direct and proximate result of such injury, and any impairment of his ability to labor and earn money, directly and proximately resulting to him from such injury, and in that way "ascertain what amount of cash money will fairly and reasonably compensate him" for the injury. It appearing from the testimony that on former occasions, as the result of other accidents, appellee had suffered injuries to his person, the court further instructed the jury not to consider in assessing his damages the effect on him of such other injuries. Having so instructed the jury, the court refused appellant's request to further instruct them that if they found for appellee they could only award him "compensation for such future results of the injuries" as they might believe would "reasonably and probably result therefrom," and could not award him compensation for consequences of the injuries which they believed might "possibly result therefrom." We think the instruction given by the court sufficiently guarded appellant's rights, and therefore that he did not err in refusing to further instruct the jury as requested. If the jury observed the instruction given them, and it should be assumed they did, in assessing the damages they awarded appellee for results in the future of the injury he suffered in the collision, they considered only his impaired ability to labor and earn money directly and proximately resulting from that injury, and awarded him on account thereof only the amount necessary to "fairly and reasonably" compensate him therefor. If they considered only that, appellant has no right to complain.
It appeared from the testimony that the absence of the patella reflexes from a person's legs was regarded by expert witnesses as indicative of a spinal injury. There was testimony that after appellee suffered the injury in the collision the patella reflexes were absent from his legs, and there was testimony tending to show the contrary. There also was testimony that the absence of the patella reflexes is not always due to an injury, but sometimes is congenital. With reference to this phase of the case, appellant asked the court to charge the jury if they believed the patella reflexes were absent, yet also believed same "were absent from his (appellee's) legs prior to the time when he was injured," not to consider the absence thereof for any purpose. If the jury believed the reflexes were absent before appellee was injured in the collision, they could not have considered the absence thereof for any purpose without ignoring the instruction the court gave them, for in his main charge the court authorized them to consider only such injuries as appellee received on the occasion of the collision. We think it should be assumed that the jury observed the instruction given them, and that appellant's rights were not prejudiced by the refusal of the court to further instruct them as requested.
A few weeks after he was injured appellee went to the home of one of his sisters, where he remained 60 or 70 days. During this time another one of his sisters, who resided with the other one, assisted in caring for him, frequently rubbing his back to relieve him of pain he suffered therein. This sister, over appellant's objection thereto on the ground that it was her opinion about a matter she had not qualified to give an opinion about, was permitted to testify that appellee "was not able to go to his meals," and that she carried his meals to him. We think the whole of the testimony objected to was admissible (Railway Co. v. Brown, 30 Tex. Civ. App. 57, 69 S.W. 1012; Railway Co. v. Long, 26 Tex. Civ. App. 601, 65 S.W. 883; Railway Co. v. Hyatt, 12 Tex. Civ. App. 435, 34 S.W. 677): but, if it was not, clearly the statement of the witness that she carried appellee's meals to him was not subject to the objection urged to it. When the objection, as in this instance, is to the whole of testimony admissible in part, it is not error to overrule it. Railway Co. v. Williams, 37 Tex. Civ. App. 198, 83 S.W. 248. For like reasons we think it was not error to overrule the objection made to testimony of the same witness set out in the statement under the sixth assignment, to the testimony of appellee's mother set out in the statements under the seventh and eighth assignments, and to the testimony of the witness Tucker set out in the statement under the ninth assignment.
At the request of one of appellee's attorneys, L. E. Smith, a physician, made an examination of appellee, and with reference thereto testified: "I found some subjective symptoms of injury, of spinal injury. He claimed pain there; that is all." Appellant's motion to exclude said testimony, on the ground that it was "hearsay and no part or parcel of the res gestze," was overruled. It is contended this was error because it appeared that the examination was made by Dr. Smith for the sole purpose of acquiring information to enable him to testify as an expert witness. From other portions of the testimony of the witness it appeared that in his examination of appellee the witness "made pressure on the plaintiff's (appellee's) spine." It does not appear from the record that the claim made by appellee was not the "instinctive or spontaneous betrayal of pain" due to the pressure by the physician on his spine. If it was, then the testimony was admissible, and the court did not err in overruling the motion to exclude it. Railway Co. v. Johnson, 95 Tex. 411, 67 S.W. 768.
Appellant earnestly insists that the verdict and judgment are excessive. There was testimony in the record sufficient to support a finding that appellee suffered serious and permanent injury to his spine. If he suffered that kind of an injury, and the jury must have found he did, it cannot be said that the amount alone of the verdict, and there is nothing else in the record suggesting it, when considered with reference to the injury, indicates they were influenced in fixing it by matters they should not have considered. Therefore we do not think it can be said that the verdict represented anything else than the unbiased judgment of the jury as to the sum necessary to compensate appellee for the injury he suffered. If it represented only that, it was what the law contemplated it should be, and we do not think we should reverse the judgment based on it.
The judgment is affirmed.