Gulf, Colorado & Santa Fe Railway Co. v. Sauter

103 S.W. 201, 46 Tex. Civ. App. 309, 1907 Tex. App. LEXIS 83

• Court: Court of Appeals of Texas
• Decided: May 8, 1907
• Status: Published

Opinion

KEY, Associate Justice.

The plaintiff, a young child, while traveling with her mother on one of the defendant’s trains, was injured by a window sash falling on one of her hands; and in this suit, prosecuted in her behalf, the defendant was adjudged liable for $1,250 damages. The defendant sued out a writ of error and the ease has been transferred to this court and submitted on numerous assignments of error.

The first assignment assails the verdict of the jury, especially as to the amount of damages allowed. We are compelled to hold that there is no merit in the assignment. There was ample testimony before the jury to justify the findings in favor of the plaintiff on all the issues of fact, and quite sufficient to sustain the amount awarded as damages.

The second and third assignments complain of the action of the trial court in overruling a motion to quash the deposition of Dr. J. F. Griffin, upon the ground that the certificate of the offi cer who took the deposition was not in compliance with the law. The court held that the motion was not presented in proper time, and declined to consider the objections presented in it. The bill of exception reserved to that ruling does not contain the certificate of the officer who took the deposition, nor state its contents. Hence the assignments presenting this matter are overruled. We cannot hold that it was reversible error for the trial court to refuse to consider and sustain objections to the certificate of the officer who took the deposition, unless we knew how the certificate read. There may have been no merit in the objection; and, if such was the case, the failure to consider and decide upon the objection would not constitute reversible error.

The fourth assignment complains of the refusal of a requested instruction, to the effect that the plaintiff was not entitled to recover any damages for mental suffering. This proposition is urged because of tire fact that the plaintiff was only four years old at the time injury was sustained, the contention being that a child of such tender age is necessarily incapable of experiencing mental suffering. We are unable to sanction that contention. It is a matter of common knowledge that children of that age, and even younger ones, become frightened, and we do not think it unreasonable to conclude that a four-year-old child may experience other mental suffering besides fright.

There are some assignments which complain of the court’s charge, and some of the refusal of requested instructions. They will all be overruled because, in our opinion, the charges which were given covered the law and properly presented the case to the jury.

We also hold that no error was committed in allowing testimony tending to show the plaintiff’s prospective musical talent. Such testimony, in connection with other evidence tending to show that some of her fingers were permanently injured, was proper to be considered by the jury in determining whether or not, and to what extent, the plaintiff’s earning capacity had been diminished on account of the injury complained of.

Some other objections are urged against certain other testimony, all of which were properly overruled.

All the assignments of error have been considered, and, finding no error, the judgment is affirmed.

Affirmed.

Writ of error refused.