Texas N. O. R. Co. v. Murray , 156 S.W. 594 ( 1913 )

I am of the opinion that the pleadings and the evidence required of the trial court the submission of the issue of assumed risk. That the servant assumes the risks ordinarily incident to his employment is elementary law. "What particular risks of the service are ordinary (that is, incident to, or usual in, the service) is ordinarily a queston for the jury; its determination not being assumed by the court, except when, as in case of any other matter of fact, reasonable minds cannot differ." Street on Personal Injuries in Texas, p. 265. That the issue of assumed risk is a question for the determination of the jury is also decided in Bonnett v. Railway Co., 89 Tex. 72. 33 S.W. 334. It is also the law that the defense of assumed risk should be affirmatively presented by proper charge to the jury and not confused by other issues.

I am also of the opinion that appellant's fourth and fifth assignments of error should be sustained. The testimony shows that appellee was injured on three separate occasions. By the charge of the court the right of recovery on account of the second and third injuries was eliminated, but the court permitted the jury to consider the second injury only for the purpose of determining the progression and development of the alleged injury to the muscles, nerves, and tendons caused by the stroke of the car upon appellee's leg. This limitation upon appellee's right of recovery is not complained of, and was justified by the pleadings when considered in the light of the opinion as rendered by the Court of Civil Apepals in the former appeal of this cause. Considering the evidence, therefore, in the light of the pleadings and of the court's charge, I am convinced that the evidence shows affirmatively that the injury from the first accident was trivial and not of itself permanent. The verdict, too, reflects that sympathy as well as the plaintiff's physical condition at the time of the trial controlled the jury in fixing the amount of damages.

Plaintiff's testimony in part is as follows: "The end of the car * * * struck me on the leg, the right leg, about two or three inches above my knee; when it struck me, there was pain with it, and I did complain of its hurting me; I told the boys about it; I told Gibson he had jerked the car on my leg; I accused him of jerking the car on my leg; I told them, all the boys that were there, and all the rest of them that would ask me; I would tell them about it you know; I didn't think I was seriously hurt, not at that time I did not; I did examine the place where the car struck me; that evening, after I quit work, I examined it, and during the day it had felt kind of a pain and dead feeling, kind of a numb feeling, and when I examined it I found kind of a big black spot there; I did continue my work that day; I worked on for about two weeks more, and my leg was hurting me all the time a right smart; it was hurting me, and it felt a numbness or deadness; it felt a dead feeling, hurt, and dead feeling, and the muscles felt sore, and I did suffer a tingling feeling in it; that kept on for about two weeks, kept up for about two weeks, and there was something happened at the end of this two weeks that indicated the condition of my leg; I worked on for about two weeks, maybe something over two weeks, and then I was unloading some 2 by 12's from a grading car; that was in the ordinary course of my work; we done a good deal of that work all the time around the shop; the laboring men like me had that sort of lifting to do; they were not any heavier than the usual ones; I was lifting them in the manner that was usual in the work; while I was lifting them, something happened to my leg; I had been working there on the car some considerable little time and I picked up the end of one, and Mr. Dooley picked up the other end of it, and I went to put my leg over some more there to keep from stumbling around and my leg went down on me; at that time my leg gave down, it just went down, and lots of pain, and that pain was distributed all through the leg, all the way from the knee up to the hip; it did include the hip; I was not able to stand on that leg then when it gave down on me; I wasn't able to work up there any more, and this man told me I had better get down and stack up the lumber they were throwing off from the skid; somebody told me I had better get down and stack up lumber, and I did try to do that, and I succeeded in doing it, and kept on with the work until about half past four I guess, and I told the man I couldn't stand the work any longer; I would have to lay off that evening, so I went over then to where my other clothes were, to put on the other clothes, and I went from there then over to the cooler to get me a drink, and there I saw Mr. Olsen, and I told him about it; I think Mr. Olsen is superintendent around there; he was my boss, boss over me, at that time he was, and he told me I wouldn't have to lay off; I could sort out nails, and he put me in the nail room and he said he had been wanting somebody for that job for a good while; so, instead of stacking the lumber, I assorted nails, and I continued that work during the rest of the evening; I was sitting down while I was doing the work of assorting the nails; knocking off time came about 15 minutes until 6, and when I started to leave there I could not walk, considerable trouble; I had a stick though; some of the boys gave me a stick; one of the boys gave me a stick, and there was pain and suffering in my movements, a good deal; there was a good deal of that, and I would hurt as I would walk; I lived some eight or nine blocks I guess from there; my brother-in-law carried me home; I sent one of the boys after him, and he sent his little boy; I sent for him because I was not able to get home without assistance and after I went home, for the next 10 days or so, I stayed at home; as to the condition of that leg during the time as to pain in it and feeling in it, there was lots of pain in it; I had lots of pain, and dead, the muscles, hurt the muscles, and it had a tingling feeling in it; I have had the tooth ache and nerve trouble; it was something like that; I was indoors most of that time; well, for some 10 or 15 days this pain was mighty bad, and after that time I went to the shop then that coming pay day to get my money; I think it was the August pay day as well as I remember; * * * the car struck me right there, in the front part, and about two or three inches above the knee I would say, in the front part and about two or three inches above the knee on my right leg; the under side of the car struck me there. * * * At the time I lifted that heavy timber, I said it was 2 by 12 and it was cypress timber; the length of the stick, some was 24 feet long as near as I remember, and some 12, different lengths, from 12 to 24 feet in length, and I was lifting one end and my assistant was lifting the other end; when I was lifting, at the time when my leg gave way, as well as I can remember, I think we had a long one, but of course I wouldn't be sure about it; I wouldn't be positive; it was somewhere near to 12 o'clock in the day when my leg gave way; I had been lifting all morning that same kind of timber, and it was close to 12 o'clock; I had lifted a good many that morning; * * * I just went down like that, come down with this leg, this right leg, just one leg; when I went down that way the lumber fell off to one side, * * * and I was lifting there and my right leg gave down and I dropped the stick of lumber; * * * I had raised it that way and tried to skid it over, and this leg gave down; * * * during that two weeks between the time Gibson dropped the car and I lifted that heavy timber, I did any kind of work, whether heavy or light, that came within the line of my duty as an employé there, and I was doing it that way, and when I discovered the weakness of that limb I quit and the foreman put me at something I could sit down at; I did not continue to work from that time on, as well as I can remember, some 10 or 15, maybe 20, days; I don't remember exactly how many days before this pay day I was telling you about; I mean I did not work for 10 or 15 days before pay day; the foreman put me to assorting nails that afternoon, and the next day I did not work at all, and didn't work any more until the pay day, and on the pay day I drew pay for the whole month; when I went to the office wherever it was to collect my pay, I did not walk there; I never walked, only from my brother-in-law's place of business where he was running a furniture store on Conti by the Harral Mill, just across the street there, and I walked I suppose a half block, maybe a block; I had been walking all the time every day during that time; I did walk and I went over there and got my check, and they paid me for the whole time; * * * I was paid about 11 o'clock in the morning, and about 5 o'clock that afternoon I was carried to the hospital as well as I remember; we had to go up a little flight of stairs to get to the place where they paid us off, to the second story; it was a tolerable tall story; it was a tolerable narrow steep ascent, narrow stairway with a high tread, a high tread, tolerably so, but I think there was railings on the outside; I think there was; I don't know for sure, but I think so; I walked up that staircase by myself without assistance, and I walked down that staircase by myself and without assistance, and I had to be carried home; I was carried home, but if you understand though, after I came down, got my check, I was walking across the floor by the machine and there was some sawdust and grit on the floor, and as I walked along there my foot slipped that way, and I tried to catch on this one and I went down; I walked up there and walked down, and after I came down I slipped on my left foot and caught on my right foot and fell down and hurt myself, and from that time on I couldn't walk and I went to the hospital that evening; I slipped on the floor; I fell; and the injury I received there is what made me so I couldn't walk, when I had walked upstairs and downstairs just before; that is right. Immediately before I could walk upstairs and walk downstairs, and I slipped on the floor and fell and then couldn't walk; after I fell, the fall of course was what it was that made me so I could not walk; that fall did hurt me; it continued to hurt me from that time on until I am relieved to the extent that I am relieved; it hurt me in the knee here and runs from the knee up to the hip and back; the way I fell, this foot slipped, my left foot slipped, and I went to catch on this one, and of course being weak it went down on me; my left foot slipped and I went to catch on my right foot and I fell; I slipped with my left foot; I caught with my right foot and fell; that's right; I just fell right down; my right leg was doubled up under me; after having fallen on my right leg with my body on it, I could not get up with my own strength; a man by the name of Mike O'Donnell picked me up, and that is the reason I had to be carried home and carried to the hospital; * * * I got my money and fell there on the floor; there was a month between the time the car struck me and the time I fell on the floor, about that time; the car struck me in September; it was a month later; * * * the 16th of October I got my pay and got hurt falling on the floor; * * * I stated that when I was lifting these timbers and my leg gave way on me that I continued to skid some more down of the same kind after that; I said I skidded a few, and the reason I stopped was because my leg was so bad I couldn't, hurting me so bad; * * * I told counsel I slipped on a sandy, greasy floor, slipped on the left foot (that is, my good leg), and I tried to catch myself, but whether I come flat footed on the right leg, it was so quick I couldn't hardly remember; when I got down there, the first thing I had was kind of a faint feeling, and there was pain in my leg from the knee up; the way that compared with the pain I had suffered when I was lifting the timbers about 12 days ago, somewhere like that, it was like it; I did not feel any more indication at that time of a dislocation of the hip than I did when I lifted the timbers; if there was any, I didn't feel it. * * * Counsel just put the question to me and I said this, in substance: That, when I fell on that floor and got hurt, I felt just about like I did when I undertook to lift that timber, and I give down under it; I meant that; after I fell on that floor, I could not have gotten up there and handled two, or three, or four, or five big 2 by 12 timbers and lifted them and skidded them down; I don't think I could, and the reason is the pain — Q. Why couldn't you if you felt like you did when you gave way with the timber? A. The pain was just the same; I could not have gotten up there and lifted those timbers; I don't think I could; I couldn't have done that; after I gave down there, lifting that heavy timber, I walked about with the aid of a stick about two weeks and climbed that flight of stairs and came down, but, as to why I didn't do that after I fell there on the floor, I wasn't able to; I couldn't do it; after I fell there on the floor, the pain was about the same; it was about the same feeling you know of pain; I mean the recognition of the fact there was a pain, by my mental organism, was about the same in one instance as the other; that is what I mean (that is, both hurt), and that is all I mean, both of them hurt; * * * I said my leg, when I was at the pay station, gave way in the same manner as it done before, and my pain was the same sort of pain, but it gave down worse then than it did before."

The testimony fails to show any injury to plaintiff's hip by the first accident. It was not until the second accident that injury to the hip is complained of, nor can it be said that any progression of injury has been shown between the time of the first and second accidents; the proof to the contrary would indicate that up to the time plaintiff received the second injury from his lifting the heavy timbers he did not suffer any ill effects to the hip; nor does the proof show that the first injury caused his leg to become smaller or atrophied, or that it in any manner affected the hip. It seems clear from plaintiff's testimony that the serious results were brought about by the second and third accidents. The second accident was of such severity as to cause him to quit work. The third accident was such as made him helpless and necessitated his going to the hospital. In the light of the testimony, it would seem that the second and the third accident brought about the condition as to atrophy and the shrinking of the muscles and tendons, etc., which caused the dislocation of the hip. The testimony of Dr. Boyd is to the effect that atrophy would not show in the leg in the two weeks intervening between the happening of the first and second accident; and, from the testimony of the doctors, one is convinced that the lick as actually received on the leg did not cause the harmful results. Dr. Boyd's testimony, when read as a whole, is strongly to the effect that the plaintiff's condition at the time of the trial must have been brought about by the second or third injury, or both combined. Dr. Boyd was plaintiff's most favorable witness. A careful study of all the evidence convinces me that it is susceptible of but one conclusion, and that is that the lick on the front part of the leg, two or three inches above the knee, of itself did not cause the dislocation of the hip, nor did it cause the atrophy which did dislocate it; and, unaided by the second and third accidents or injuries, dislocation of the hip would not have occurred from the first. The testimony of the doctors appears to be more or less speculative, and the conclusions evolved by them do not seem to be based upon conditions identical with or similar to the conditions as testified to by the plaintiff; that is, an injury such as is actually shown to have occurred to plaintiff by the first accident.

I am therefore of the opinion that this cause should be either reversed and remanded, or that a proper remittitur be ordered, allowing plaintiff judgment for a nominal sum.