« ForrigeFortsett »
ments, and which will likely be avoided upon of Railway v. De Groff was a suit in which another trial,
an injunction was sought by De Groff to re For reasons stated in our opinion on strain the railway company from obstructthe former appeal there was no error in over- ing the street in front of plaintiff's hotel, ruling defendants' special exception to that which obstruction caused a depreciation in portion of plaintiff's petition alleging an plaintiff's hotel business, resulting from ineffort to compromise the debt for which the convenience to the customers of the hotel in former suit was instituted, made before the reaching it. In that case our Supreme Court attachment was issued, and in admitting held that the injunction prayed for would testimony upon the last trial in support of not lie for the reason that plaintiff had a those allegations.
right of action at law for damages for loss  In plaintiff's petition it was alleged of business resulting from such obstruction. that the garnishment writ, as well as the American Constr. Co. v. Caswell, supra, was attachment, was sued out wrongfully and a suit by Caswell, a merchant, to recover maliciously, and without probable cause. As damages for loss of profits in his business on noted already, actual damages were claimed account of the erection of a fence and other which we are of the opinion were recoverable buildings on a lot adjoining plaintiff's store, if established. Hence the exceptions to the resulting in a diversion of customers from claim for exemplary damages on the ground tion of light and air rendering the store hot,
plaintiff's place of business, and the obstructhat no actual damages were pleaded were properly overruled. If there was error in Co. v. Davis, supra, was a companion case
dark, and uncomfortable. American Constr. overruling other special exceptions seeking to the case last noted, by Davis, also a mermore specific information relative to the name of the payee, payer, date of note, date chant, who sued for damages of the same
character. The cases relied on by appelof maturity, etc., such error becomes im- lants were suits for damages resulting from material in view of another trial, since ap- the levy of attachment writs wrongfully ispellants are now fully informed upon those sued. În the opinions relied on by the appelissues from the evidence introduced on the lee no reference is made to the decisions last trial.
first noted. Whether or not there is a con Nor was there error in overruling Aict between these two lines of decisions it different special exceptions to the claim for is not necessary for us to determine, for we the value of the vendor's lien notes, with in- feel it our duty to follow the rule announced terest, which plaintiff alleged that he would in the decisions first cited as being more dihave received in exchange for his stock but rectly applicable to the issues in the present for the service of the writ of garnishment, case. Based upon that conclusion, we are for the reasons discussed on the former ap of the opinion that actual damages claimed peal. See, also, Trawick v. Martin Brown in this suit by the appellee for loss of prosCo., 79 Tex. 460, 14 S. W. 564.
pective profits in his business were not re Appellants insist that the loss of pro- coverable, although such loss could be proven spective profits in business, which appel- for the purpose of assessing exemplary damlee alleges resulted from the issuance and ages, provided a proper predicate should be service of the writ of garnishment, could not established therefor. in any event be recovered as actual dam  We are of the opinion, further, that ages, but could be looked to only for the pur- even though such profits as alleged in plainpose of estimating punitive damages if the tiff's petition were recoverable as compensaproper predicate should be established there- tory damages, the evidence introduced upon for. This contention is sustained by numer- the trial was too indefinite and uncertain to ous decisions of our Supreme Court. Kauf-warrant such a recovery. The only evidence man v. Armstrong, 74 Tex. 65, 11 S. W. 1048; we have found in the record offered for the Kauffman v. Babcock, 67 Tex. 241, 2 S. W. purpose of showing such loss of profits was 878; Miller v. Jannett, 63 Tex. 82; Wallace that of the plaintiff, Foster, himself. He tesv. Finberg, 46 Tex. 35. Appellee invokes the tified in part as follows: "In the year 1900 following decisions of our Supreme Court to I divided up with my children, my first wife sustain his contention that such loss of having died, and I had property that I valued prospective profits is recoverable as actual at $1,800. On January 1, 1910, I was worth damages. City of San Antonio V. Royal about $25,000, which was the income of my (Sup.) 16 S. W. 1101; G. H. & S. A. Ry. Co. property from 1900 to 1910, and from which v. De Groff, 102 Tex. 433, 118 S. W. 134, 21 I estimate that my annual income during 'L. R. A. (N. S.) 749; also the following deci- that time must have been at least $2,000 or sions by the Court of Civil Appeals for the $2,500 per year, and from the management of Third District: American Construction Co. my business, my experience in the managev. Caswell, 141 S. W. 1013, and American ment of that business, and the capital I had, Construction Co. v. Davis, 141 S. W. 1019. I should reasonably have made $2,000 or The case of City of San Antonio v. Royal, $2,500 during the next three years, and since was one for the recovery of damages for the the running of these garnishments on my destruction of the business of a huckster by property I have not been able to carry on the removal of his trading stand. The case my business. I had nothing left with which
to carry on my business to make the annual, was of that fixed and certain character earnings I had been the years before. My which would be a proper basis for a recovery credit was good at the banks, and in the com- of damages even under the four last-menmercial world, I could borrow money from tioned decisions. At all events, we are of any one who had it to loan and who knew me the opinion that the evidence introduced upon without collateral. Nobody ever asked me the trial of the present case was insufficient for collateral or security. I have borrowed to sustain appellee's claim for damages for the limit several times from these banks loss of profits in his business, even under the here, $7,000 without security, and since the four last-named decisions, as there were no attachments and garnishments I have had to facts detailed by him in his testimony relaput up security for every dollar I borrowed. tive to his business transactions during the I have not asked any one to credit me with past 10 years next preceding the trial from out security.
My main business which the jury could ascertain with reason. has been that of a trader, buying and selling, able certainty the amount of profits lost. and Mr. Bennett has lived here for a number From plaintiff's own testimony only a small of years, and was intimately acquainted with part of his total capital of $25,000 was tied my business. All the property of mine that up by the service of the writ of garnishment. was reached by the writs of garnishment He was left free to operate upon the capital was the 26 shares in the oil mill. I do not not affected by the garnishment, and did know what my annual earnings were for operate the same. He testified that before any one year, cannot say what they were in the levy of the garnishment he could borrow 1900, 1901, 1902, and 1903, or any other year money without giving security therefor, but during the 10 years from 1900 to 1910. I does not give any estimate of the amount he don't know exactly what trades, nor how could have so borrowed. The gravamen of I made it. Part of the time I was in the his complaint seems to be that he had lost grocery business, part of the time in the gin his credit with the banks to this extent, and business, a part of the time working on a yet, according to his testimony, he never atsalary for W. R. Martin Grocery Store. I tempted to borrow money without offering know of a few trades I have made.” This collateral after the garnishment was served. witness then detailed three or four trades He does not testify to what uses he would that he made upon which he made a profit, have applied any capital he might have borconsisting of the purchase and sale of real rowed if his former credit had not been imestate, an electric light plant and gin, all of paired, what investments he could and would which property he has since sold, and fur. have made with such funds, nor does he give ther testified that he had realized a profit the jury any information from which they from the operation of the electric light plant, could estimate whether or not such investand also from the operation of the gin. ments, if any, would have been profitable. After detailing those transactions, he con- As noted above, the aggregate of damages tinued: “I don't know what other trades I claimed for the loss of appellee's opportunihave made, and I couldn't tell you without ty to exchange his 26 shares of stock for looking on the record, or something of that the vendor's lien notes was $1,278.26. In no kind, as I have kept no account in the last event would the record in this cause supten years."
port a recovery for a sum greater than that It is well established by all those authori. amount; and, accordingly, appellants' first ties in which damages for the loss of profits assignment of error, complaining that the in business are allowed that there must be trial court erred in overruling a motion for sufficient data to enable the jury, with a
new trial on the ground that the verdict was reasonable degree of certainty and exactness, excessive, is sustained. to ascertain the loss and that damages will
For the errors indicated, the judgment is not be allowed where the losses are merely reversed, and the cause remanded for a new speculative and conjectural and incapable trial. of ascertainment with reasonable definiteness. See Railway v. De Groff, supra. As noted already, in the case last cited, the business
FT. WORTH BELT RY. CO. V. CABELL. which plaintiff was conducting was that of hotel keeper.
In the case of City of San (Court of Civil Appeals of Texas. Ft. Worth. Antonio V. Royal, plaintiff was engaged in
Nov. 8, 1913. Rehearing Denied
Dec. 13, 1913.) operating a huckster's stand, and in each of the cases of Am. Constr. Co. v. Caswell and 1. NEGLIGENCE ($ 136*)-PROXIMATE CAUSE
JURY QUESTION. Am. Constr. Co. v. Davis, supra, the plain
Ordinarily, the question whether an intiff was operating a store for the sale of jury should have been foreseen and was the merchandise. In each of the four cases last proximate result of the negligence complained
of is for the jury. mentioned it appears that the business was
[Ed. Note.--For other cases, see Negligence, an established business. It is doubtful
Cent. Dig. 88 277-353; Dec. Dig. 136.*] whether the business of the appellee in this 2. NEGLIGENCE ($ 59*)--PROXIMATE CAUSE. case, being that of a mere speculator in
If an injury follows an act of negligence in buying and selling real estate, stock, etc., natural sequence, and there is no intervening
For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
agency, the wrongdoer is, as a matter of law, | contributory negligence, evidence that it would held to have had the result in contemplation, have been dangerous to have jumped, under
[Ed. Note. For other cases, see Negligence, the circumstances, was admissible. Cent. Dig. $ 72; Dec. Dig. 8 59.*]
[Ed. Note.-For other cases, see Master & Serr3. MASTER AND SERVANT ($285*) INJURIES ant, Cent. Dig. 88 939–949; Dec. Dig. $ 274.*) TO SERVANT-JURY QUESTION.
10. EVIDENCE (8 471*)-CONCLUSIONS OF WirIn a personal injury action by a railroad NESS-ADMISSIBILITY, brakeman, whether the employer's negligence In a personal injury action, where it was was the proximate cause of the injury held un- sought to show that plaintiff was a malingerer, der the evidence for the jury.
and the court allowed a full inquiry as to : [Ed. Note. For other cases, see Master and previous injury, it was proper to exclude tesServant, Cent. Dig. $$ 1002, 1003, 1007. 1008, timony by a physician that on one occasion he 1016, 1035. 1043, 1053; Dec. Dig. $ 285.*] noticed plaintiff go across the street on crutch4. MASTER AND SERVANT (8 129*) – INJURIES far as the assistance plaintiff was getting from
es, and that they were absolutely useless as TO SERVANT-PROXIMATE CAUSE. Where a
railroad brakeman, upon the them, the testimony being in the nature of a breaking loose of cars, attempted to catch them conclusion of the witness. so as to put on the brakes, and was injured by
(Ed. Note.-For other cases, see Evidence, being thrown from the cars when they struck Cent. Dig. $8 2149-2185; Dec. 'Dig. & 471.*] stationary ones, the fact that he left a place 11. EVIDENCE (8 129*)-ADMISSIBILITY-PERof safety and exposed himself to danger, that SONAL INJURIES. being his duty, did not break the causal con: In a personal injury action, where there nection between the negligence of the railroad was nothing to show a settled system on the company, in furnishing insufficient couplers and part of plaintiff of maintaining fictitious claims, defective tracks, and the injury.
an isolated instance of a fictitious claim for [Ed. Note.-For other cases, see Master and damages for personal injury is inadmissible to Servant, Cent. Dig. 88 257–263; Dec. Dig. 8 show that plaintiff was simulating his present 129.*]
injuries. 5. TRIAL ($ 260*)-INSTRUCTIONS-REFUSAL OF [Ed. Note.-For other cases, see Evidence, REQUEST COVERED BY THOSE GIVEN.
Cent. Dig. 88 388-393, 395-398; Dec. Dig. $ In a personal injury action, where the 129.*] court fully charged on proximate cause, the re- 12. WITNESSES (8 410*)-CORROBORATION. fusal of a special request on that issue, which In a personal injury action, where a pby. also defined remote cause, was pot error.
sician who testified to examining plaintiff at [Ed. Note.-For other cases, see Trial, Cent. the time of an injury while working for another Dig. 88 651-659; Dec. Dig. § 260.*]
railroad company was contradicted by plaintifi, 6. Trial (884*)-ACTIONS–EVIDENCE-AD- that contradiction was not such an impeach
ment as to authorize the introduction of the reMISSIBILITY. In a personal injury action by a railroad port by the physician as corroborative evi
dence. brakeman who was thrown from wild cars, which he was attempting to stop after they had
[Ed. Note. For other cases, see Witnesses, broken loose from a train, where the railroad Cent. Dig. § 1284; Dec. Dig. & 410.*] set up contributory negligence because of his 13. APPEAL AND ERROR (8 742*) ASSIGNfailure to jump after he saw that the cars MENTS OF ERROR-PROPOSITIONS. would collide with a standing car, evidence that In a personal injury action, where plainthe parallel tracks on which other cars were tiff's character had been impeached by testimony standing seemed closer than was usual in rail as to his poor reputation for honesty and integ. road yards cannot be held inadmissible merely rity, and plaintiff testified as to why he failed on general objection, upon the theory that it to pay his debts, propositions under an tended to show negligence not pleaded. signment complaining of the admission of such
[Ed. Note.-For other cases, see Trial, Cent. testimony, which recited that in a personal inDig. 8$ 211-218, 220–222; Dec. Dig. $ 84.*] jury action it is error to admit plaintiff's tes.
timony to the effect that he was poverty-strick: 7. APPEAL AND ERROR (§ 1050*)-HARMLESS en, and that the introduction of immaterial and ERROR-ADMISSION OF EVIDENCE.
irrelevant testimony does not justify the adAny error in the admission of evidence mission, over the objection of defendant, of imover objection was harmless, where other evi: proper testimony to explain it, do not require dence to the same effect was received without consideration; being too general, and not objection.
pointing out any specific error. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 1068, 1069, 4153-4157, Error, Cent. Dig. $ 3000; Dec. Dig. $742.*]
[Ed. Note.--For other cases, see Appeal and 4166; Dec. Dig. § 1050.*]
14. WITNESSES (8 358*) - EXAMINATION 8. MASTER AND SERVANT (8286*)-INJURIES CROSS-EXAMINATION. TO SERVANT-ACTIONS-JURY QUESTION.
Where impeaching witnesses are offered, In a personal injury action by a railroad to attack the reputation of one of the parties, brakeman hurt when thrown from wild cars the party assailed is entitled, on cross-examiwhich had come uncoupled, the question of the nation, to compel the witness to state the source master's negligence in furnishing insufficient of the reports upon which he bases his testicouplers and in maintaining defective tracks, mony. which caused the cars to break loose, held for
[Ed. Note.--For other cases, see Witnesses, the jury.
Cent. Dig. $$ 1159, 1160; Dec, Dig. 338.*] [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $$ 1001, 1006, 1008, 1010– 15. WITNESSES (8 361*)-IMPEACHMENT-COB1015, 1017-1033, 1036–1042, 1044, 1046–1050;
ROBORATION. Dec. Dig. § 286.*]
Where impeaching testimony is offered evi.
dence which will satisfactorily explain it is ad9. MASTER AND SERVANT ($_274*)-INJURIES missible, and hence, in a personal injury acTO SERVANT-ACTIONS-EVIDENCE.
tion, where plaintiff's character was impeachIn a personal injury action by a railroad ed by evidence as to his bad reputation for inbrakeman, where the railroad company claimed | tegrity and truth, owing to bis failure to pay that his failure to jump from wild cars his debts, plaintiff was entitled to testify as 10 *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Repër Indexes
the reasons for his failure; especially where a speed, as he testified, of some 12 or 15 some of his reasons were elicited without ob- miles an hour, with the intention of ascendjection upon the examination of other wit- ing to the top and fastening the brakes. This
[Ed. Note.-For other cases, see Witnesses, car was provided with a “stirrup” extendCent. Dig. $$ 1167–1175; Dec. Dig. § 361.*] ing below the bottom of the car above which 16. APPEAL AND ERROR ($ 719*) - ASSIGN was fastened a hand hold. The ladder proMENTS OF ERROR, NECESSITY.
vided for ascension was on the front instead In a personal injury action, where there of on the side, and appellee, after having was no assignment of error that the verdict, as reduced by the trial court, was excessive; gotten upon the stirrup with his left foot a judgment for plaintiff will not be disturbed and with his left hand holding to the supbecause of improper argument of counsel, port above, threw his right hand around the which went to the amount of recovery only.
corner of the car, intending to ascend the [Ed. Note.-For other cases, see Appeal and end ladder, when, as he testifies, he saw Error, Cent. Dig. $82968-2982, 3490; Dec. Dig. $ 719.*]
that he was so near the standing car that
he did not have time to make the ascension; Appeal from District Court, Tarrant Coun- that it was dangerous to jump off the car ty; R. H. Buck, Judge.
upon which he was standing because of the Action by G. S. Cabell against the Ft. proximity of some standing cars on a parWorth Belt Railway Company. From a judg. allel track, and it was likewise dangerous ment for plaintiff, defendant appeals. Af- for him to place himself upon the end ladder firmed.
and remain there during the impending colStephens & Miller, of Ft. Worth, for ap- lision; that he, therefore, remained in the pellant. Carlock & Carlock, of Ft. Worth, position stated, to wit, with his left foot in for appellee.
the stirrup, with his left hand on the sup
port above, with his right hand on one of CONNER, C. J. Appellee instituted this the rounds of the end ladder, and his right suit to recover damages for personal in- foot on an extending uncoupling rod; that, juries, and secured a verdict and judgment while in the position stated, the string of for $5,000, which upon a hearing of the mo
cars upon which he was situated violently tion for a new trial was reduced by remit- collided with the standing car; that thereby titur to $3,000.
his hold was broken and he was hurled forEvery step in the proceeding seems to have ward, but managed to catch upon the standbeen skillfully and vigorously contested in ing car which he later ascended and where behalf of appellant, but, after a careful con
he was afterwards found with injuries to sideration of the record, we have failed to which he testified. As accounting for the find an error for which we think the judg- fact that the string of cars broke loose from ment must be reversed.
the switch engine, and as grounds of negAs alleged and supported by testimony, ap- ligence charged to be the proximate cause of pellee's injuries were received under substan- appellee's injuries, it was alleged that the tially the following circumstances: Appellee string of cars to which the switch engine at the time was in the employment of the ap- had been first attached were provided with pellant railway company as a switchman. On automatic couplers, and that the track upon the day of the accident, a switch engine cou- which the movements were made was in bad pled to a string of some eight standing cars repair, there being low joints in the track with the purpose of coupling thereto a stand- which had a tendency to so disarrange the ing car some 25 car lengths south of the cars couplers as to allow them to part, and the first mentioned. Appellee, in the perform- defendant company was charged with negance of his duty, first released the air on ligence in maintaining both defective couthe cars attached to the engine, and im- plers and a defective condition of the track mediately and rapidly walked in the direc- whereon the cars were being handled at the tion of the single car to which the train was
time. to be coupled, with the purpose of opening
[1-3] In several forms, it is earnestly insistthe “knuckle" in order to make the coupling.ed that if it be admitted, as there was eviWhen within about 30 or 35 feet from the dence tending to show, that the appellant railcar at the south end of the yards, another way company was guilty of negligence in switchman, Du Poyster, gave appellee a either providing defective couplers or in signal indicating that the cars had broken maintaining a defective track, yet such acts apart. Appellee, as it was his duty to of negligence cannot be held to be the proxido, immediately started in a run back to mate cause of appellee's injuries, for the reathe uncoupled cars which had been attach- son that such injuries were not such as, in ed to the engine, for the purpose of set- the light of the attending circumstances, ting the brakes to keep them from doing ought to have been foreseen as a natural damage by hitting the stationary car, or and probable consequence of such act of by going over a "derail” situated at the omission; numerous authorities being cited south end of the track. Appellee caught the in support of this contention. The doctrine first of the approaching cars while going at of "proximate cause” has been so frequently
*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
discussed, and is so well understood that we have occurred, notwithstanding that no incannot hope to add to what has from time jury could have occurred if it had not hapto time been clearly stated on the subject pened." in the decisions. There can be no doubt of The issue presented in the first paragraph the general proposition that it is ordinarily of this special charge was submitted in the an issue for the jury to determine whether, court's general charge under an approved in any given case, an injury similar in char- definition of proximate cause which, intel. acter to that under investigation ought to ligently considered, as we must presume was have been foreseen as a result of an act of done, needed no illumination in the way of a negligence established by the evidence. It definition of an opposite a "remote cause"the injury follows the act of negligence in which at most could only be indirectly relenatural sequence, and there is no independ- vant. ent, intervening cause, and the injury would  It is urged in the sixth and seventh asnot have occurred but for the act or acts of signments of error that the court erred in negligence shown, it meets the requirements permitting appellee, as also the witness C. of the law. Under such circumstances, the P. Garey, to testify, in substance, that the wrongdoer, as a matter of law, is held to parallel tracks hereinbefore mentioned “seemhave had the result in contemplation. The ed closer together than tracks in railroad court gave an approved definition of the yards ordinarily are.” On the trial appelterm "proximate cause," and we think it lant pleaded contributory negligence on apwas for the jury in this case to say whether pellee's part because of his failure, among the acts of negligence shown caused or prox- other things, to jump off of the car upon imately contributed to cause appellee's in which he attempted to ascend after he saw juries, and whether such injuries, or some that it was about to collide with another, like injuries, under the attending circum- and it seems clear that, as relevant to this stances, ought to have been foreseen. The issue, appellee was authorized to show the jury's verdict on this issue was in appel- distance between the parallel tracks, the dislee's favor, and under the evidence we do tance the standing cars extended over the not think the verdict can be disturbed. track, and, as he did by expert testimony,
 It is true appellee was in a place of that it was hazardous to jump off of the safety when he was informed of the un- running car in such close proximity to the coupling of the cars, but his act in thereupon cars standing on the parallel tracks. So attempting to ascend the approaching train that we could in no event sustain the single was in the performance of his duty to ap- proposition under the assignments named, pellant as a switchman and can in no legal which is that the testimony "was immaterial sense be regarded as an independent cause and inadmissible, and the admission of such which brought about appellee's injuries in evidence constitutes reversible error.” the sense that it broke the causal connection
 Could it be said, however, that the between the negligence charged and the in- general objections that the "evidence was imjuries received.
material and inadmissible" were sufficiently  Nor do we think the court committed broad to admit the contention that it tended error in refusing appellant's special charges to establish an issue of negligence not al2, 3, and 4, on the subject of proximate leged, or that in no event could be a proxicause, which in our judgment would have had mate cause of the injuries received, then we a tendency to confuse rather than to enlight- think the objections are answered by the fact en the jury. For instance special charge No. that other evidence, of substantially the 2 is as follows: “Even though you find and same effect, on the part of the witness W. N. believe from the evidence that the track be- Turney was offered and received without oblonging to the defendant was [and] in use jection, this witness testifying that: “Those by it at the time of the occurrence of the tracks (the parallel tracks to which the testithings complained of by plaintiff in his peti-mony objected to relates) are too close totion herein was in defective condition by gether and have always been, while I was reason of low joints therein, and that by rea- working there.” Moreover, it would seem son of such defective condition of said track that the unusual proximity of the tracks was the defendant was guilty of negligence, yet part of the very situation in which appellee you cannot find for the plaintiff on that was placed at the time it is insisted be ground unless you believe and find from the should have jumped from the moving train, evidence that such negligence was the prox- and, perhaps, tended to explain why he failimate cause and not the remote cause of ed to do as he otherwise might safely the injury of which plaintiff complains. In have done had the tracks been placed their the law of negligence, a remote cause of an usual distances apart. injury is one which does not by itself alone  By objection to the testimony, and by produce the given result, but which sets in the presentation of a special charge to the motion another cause, called the proximate refusal of which error is assigned, appellant cause, which immediately brings about the presented the contention that there was no given effect, or, otherwise defined, it is that evidence of a defect in the coupling of the which may have happened and yet no injury cars. It is true that the witness who coupled