South Texas Tel. Co. v. Tabb , 52 Tex. Civ. App. 213 ( 1908 )

This is a suit by appellee against the telephone company to recover damages on account of injuries sustained by being thrown from a buggy in which she was riding coming in contact with a guy-wire extending from a telephone pole on and to a public road in such a manner as to incommode the public. The ground of negligence alleged is that the telephone company negligently placed its guy-wires such a distance within the public road as to incommode the traveling public. There was a verdict and judgment in favor of appellee for $2,000.

We find that there is evidence which supports the verdict on the ground of negligence substantially as alleged. The telephone company located the guy-wire partially in the public road, and the appellee, in the nighttime, in attempting to pass another vehicle while riding in a buggy, came in contact with the wire and was thrown from the buggy and sustained injuries substantially as described by her. There is evidence which justifies the conclusion that she was in the exercise of ordinary care when she was injured, and that the telephone company, while having the right to use the public road, was guilty of negligence in locating the wire where it was placed, and that such location was of a nature calculated to incommode the traveling public in the use of the public road.

Appellant's first assignment of error is that the court erred in permitting Mr. and Mrs. Tabb to testify as to what the plaintiff told them about her injuries. Mr. Tabb was the father of the plaintiff, and testified that he saw his daughter the next day after the injury, and that she seemed to be complaining of her head — complained that the pain commenced where the neck joins the head and went to the front, over one of the eyes. The proposition submitted under this assignment complains that it was not admissible, because it does not fall within the rule of res gestae. No such objection as this was made at the time of the introduction of this testimony. The bill of exception shows merely that it was objected to as leading, and that it called for the conclusion of the witness. It is well established that the appellate court will not consider an objection to the evidence not urged in the court below. Wheeler v. Tyler S.E. Ry. Co., 91 Tex. 356. While the assignment also complains of the admission of the evidence of Mrs. Tabb, we do not find that any objection was urged in the court below to her testimony. This is all that it is necessary to say in order to dispose of this assignment; but, however, if the question was presented so that we would have to pass upon it, we are clearly of the opinion that the evidence was admissible. St. Louis S.W. Ry. v. Gill, 55 S.W. 386; Wheeler v. Tyler S.E. Ry., 91 Tex. 356; St. Louis Ry. Co. v. Haynes, 13 Texas Ct. Rep., 25. The evidence as to what was said by the daughter is not a mere recital of a past occurrence or condition, but was a statement accompanying and explaining a present physical condition from which she was then suffering.

The proposition submitted under appellant's third and fourth assignments of error is to the effect that the plaintiff should not be permitted to recover because the wire which caused her injuries was not upon the graded and traveled portion of the public road. In other words, that the public is confined in the use of the road to that part of it which is graded and traveled by the public. Article 698 of Sayles' Civil Statutes provides that corporations created for the purpose of constructing and maintaining telegraph lines, poles, etc., are granted the privilege of using the public roads, streets and waters of the State, provided they do so in such a manner as not to incommode the public. The court submitted to the jury the question as to whether the guy-wire was so located in the road as to incommode the traveling public, and the effect of the finding of the jury is that the telephone company was guilty of negligence in locating the guy-wire where it was placed. There is abundant evidence in the record establishing this proposition. The public is not in all instances confined to the graded portion of the road, or the part habitually used by the public, but circumstances might arise in which the public would be entitled to use that part of the road which has not been graded. There is nothing in the law that confines the public solely to the graded part of the road, but the right conferred upon the telephone company is merely a privilege to use the public road under circumstances so as not to discommode the public, and that, as before said, was a question for the jury to determine.

Appellant's sixth assignment of error complains of the court's definition of negligence. The seventh assignment complains of the court's definition of contributory negligence. Both of these assignments are overruled. The definitions given in the charge were substantially correct.

The twelfth assignment is to the effect that the evidence fails to show that the South Texas Telephone Company placed obstructions in the road. The evidence, in our opinion, is sufficient to establish the fact that the South Texas Telephone Company was guilty of placing the obstruction in the road. It is unnecessary to set out the evidence bearing upon this question; enough is said in appellee's brief in reply to this assignment to show the identity and connection of this company with the act of negligence complained of.

The eleventh assignment of error is overruled. Mere conflicting or contradictory statements of witnesses for plaintiff is not sufficient ground for setting aside the verdict; but, however, in this respect we are not prepared to say that the contradiction was of such a character that it could not be explained, or was of a nature to discredit the testimony of the witnesses in behalf of the plaintiff.

We find no error in the record and the judgment is affirmed.

Affirmed.

Writ of error refused.