I. G. N. R. R. Co. v. Ellyson , 43 Tex. Civ. App. 45 ( 1906 )

This suit was originally brought by Mrs. Mary Ellyson to recover damages for personal injuries sustained by her while a passenger on one of the defendant's trains. The injuries were sustained in a collision at a crossing between the train in which she was a passenger and another train of the defendant, through the negligence of the agents and servants of defendant in charge of the trains. Mrs. Ellyson died November 1, 1902, and thereafter the appellees, as her heirs, suggested her death and made themselves parties plaintiff by filing their first amended original petition, upon which they went to trial. Trial before the court and jury resulted in a verdict and judgment in plaintiffs' favor for $2,000.

The principal question of law involved in this case was passed upon by this court in the former appeal of the case in 75 S.W. Rep., 868. There is no controversy as to the fact of accident and the negligence of the appellant and the injuries sustained by Mrs. Ellyson. The only question of fact involved in this appeal is whether Mrs. Ellyson died from the effect of the injuries she received, or whether her death was attributable to a diarrhœa or bowel trouble. It is substantially conceded that this action can only be maintained by the appellees in the event it comes within the terms of article 3353a of the Revised Statutes, which we need not now discuss, as that provision of the law was construed by this court in its former opinion. If the proximate cause of her death was the injuries she received in the collision, the appellees can not recover; if the diarrhœa or bowel trouble was the cause, they are entitled to recover. It is seriously contended that the evidence establishes the fact that the injuries, and not the bowel trouble, was the proximate cause of her death. The attending physician, the principal witness who testified as to the cause of her death, crosses himself in some material particulars. Some part of his testimony is to the effect that the proximate cause of death was the diarrhœa or bowel trouble. This is contradicted by his own statement to the effect that the injuries were the cause, or proximately contributed thereto. There is evidence of some other witnesses of slight weight which tends to corroborate the opinion of the physician in his statement to the effect that death was caused by the bowel trouble or diarrhœa. As to how much of the testimony, or as to what part of it, of the physician, was entitled to credit, was a question to be passed upon and settled by the jury. We are not prepared to say that the verdict is without evidence to support it.

The third assignment of error complains of the court's definition of proximate and remote cause. As to proximate cause it is substantially the same as approved by the court in San Antonio A. P. Ry. Co. v. Stevens, 11 Texas Ct. Rep., 399. There is no legal objection to the definition given to these terms by the trial court. If it was desired that they should be made plainer and more specific, a request to that effect should have been asked by special charge, which was not done.

There are several objections urged to the charge of the trial court, and some objections urged to the action of the court in refusing special instructions, which have been considered. The charge of the court, in connection with the special instructions that were given at the request of the appellant, in a proper way, substantially presented all the questions that were necessary to be passed upon.

What we have said as to the facts disposes of the tenth and eleventh assignments of error. The twelfth assignment of error is a general complaint as to the verdict being excessive. In view of the evidence, we are not prepared to say that the verdict was too large.

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

Affirmed.

Writ of error refused.