On Rehearing. Upon consideration of motion for rehearing herein, Chief Justice HARPER concludes that the refusal of the requested special charge upon assumed risk does not present reversible error, and that the motion should be granted and the cause affirmed. It will therefore be so ordered. It then becomes necessary to dispose of the fourth and fifth assignments of error, which were not passed upon in the original majority opinion. In passing upon the same, it becomes necessary to make a more complete statement of the nature of the case and facts adduced in evidence than was contained in the original opinion of the majority.
Appellee was employed as a laborer by appellant, and while engaged in his work, together with other employés, in the yards of appellant in the city of Houston, he received injuries while moving a push car from one track to another. It is alleged: That one of his coemployés, Gibson, who was handling one end of the car, negligently caused the same or permitted it to fall upon or be thrown against plaintiff's leg and strike the thigh thereof a few inches above the knee with great force and violence, whereby the leg, thigh, and hip and the muscles and nerves thereof and cognate muscles and nerves were so impaired that as a natural and proximate result thereof he had sustained injuries as hereinafter stated. That the injuries complained of were not instantaneously or immediately developed by the blow on the thigh, but were progressively developed so that he did not at first suppose he was seriously or permanently injured, although the pain was great, and so supposing he went back to work. That he continued to feel some suffering, deadness, or unnaturalness in his said leg, and about two weeks after the said blow on his thigh plaintiff undertook, in the usual course of his work, to move certain heavy timbers of a size and kind such as he had frequently handled without hurt, and which as a prudent man he might properly handle as he was then attempting to do, but his leg, on account of the aforesaid blow on the thigh from said push car, gave away or down so that he was unable to continue such work of moving such timbers and had to desist therefrom. That said injury continued to progress seriously to a condition of permanency, so that about a month after the casualty, when he was at or near defendant's office for the purpose of obtaining his pay, he, without negligence on his part, slipped on his uninjured leg and thereby threw his entire weight upon his right leg, which had received the blow from the push car, as aforesaid, whereupon, on account of such blow on said thigh, the injured leg gave way or down and caused him to sustain a violent fall, with his injured leg twisted or doubled up under him, from which condition he was unable to extricate himself, and, being utterly helpless, was taken thence to his home and from there to the hospital, from which, after treatment by appellant's surgeon, he had been discharged a hopeless and permanent cripple. That as a natural and proximate result of said blow from said car, by defendant's negligence, the muscles and nerves, cords and tendons of his thigh and hip, *Page 601 including the cognate muscles and nerves pertaining to same, became weakened, atrophied, and impaired, whereby and on account whereof his leg and thigh gave way, as aforesaid, causing him to fall, as aforesaid, on the occasion aforesaid, producing, according to his information and belief, an ununited fracture of the femur or thigh bone, and an improper union or connection between the head of the bone and the joint cavity (the acetabulum), so that the thigh bone rests in or is connected with the pelvis in an abnormal position, causing a shortening of the limb, producing pain in same, and interfering with the motion thereof, and said hip joint so dislocated and the hip impaired, and the bone pertaining to same fractured or so injured that he has permanently lost the use of the leg, thigh, and hip, rendering him a permanent cripple. That his injuries were directly caused and developed by said blow and consequent impairment of the muscles and nerves, as aforesaid, or, if not, by the giving way or down of his leg when he attempted to lift the timbers or when he slipped and fell; and, in either event, they were in a natural and probable sequence and natural and proximate result of the said blow from the car. The other allegations usual in such cases were made.
The evidence discloses that appellee was first hurt about September 15, 1907, while he and three other men were engaged in lifting a push car from one track onto another track. While so moving the car one Gibson, who was assisting in so doing, turned loose the end of the car he was holding, whereby the car was jerked over against appellee, and the end of the car which he was lifting dropped down and struck him on the right leg two or three inches above his knee. Gibson was caused to turn loose his end of the car by a stumble. The blow upon his leg caused appellee some pain, and during the remainder of the day it had a dead or numb feeling and a big black spot upon the same. He did not think he was seriously hurt, and continued his work during the remainder of that day and for about two weeks more. During this time the leg continued to feel numb and dead and sore, with a tingling sensation and more or less pain. After continuing his work for about two weeks, he was engaged in unloading some timber from a grading car of no greater weight than the ones usually handled by him in doing such work, and, while engaged in so unloading such timbers, he picked up the end of one and a coservant, Dooley, picked up the other end, when plaintiff's leg, which had received the blow aforesaid, gave way, with considerable pain from the knee up to and including the hip, and he became unable to stand on that leg or to continue his work in unloading the timbers. He then began stacking lumber, which he was able to do until about half past 4 o'clock in the afternoon, when he was unable to continue longer at that work, and he then sorted nails until quitting time at 6 o'clock. When he quit at 6 he walked with difficulty and with pain and was carried home and remained at home for the next 10 days, during which time he was confined in the house most of the time, suffering considerable pain. On pay day he went to receive his pay, and after receiving the same, while walking across the room, he slipped on his uninjured leg and he threw his weight upon and caught on the injured leg, which gave way and he fell. After this fall he was unable to arise or to walk and was carried home, and thence the same day to the company's hospital, where he remained for some time, and upon leaving the same had to do so upon crutches and has since been a cripple.
The fourth assignment complains of the following paragraph of the court's charge: "If your verdict is in favor of the plaintiff, you will assess his damages at such sum as you believe, from the evidence, will fairly and adequately compensate him for alleged injuries, if any, which you may find from the evidence he has sustained as a natural and proximate result of his thigh being struck by the car in question, if it was, taking into consideration, as elements of damage, so far as shown by the evidence (if at all) to be the natural and probable result of such injuries: (1) Mental anguish and physical suffering, if any, including such as he will in reasonable probability suffer in the future, if any; (2) the reasonable value of his lost time down to the trial, if any; and (3) the reasonable value, if paid now, of his lost earning power in the future beyond the trial, if any."
The proposition subjoined to this assignment reads: "The petition was insufficient to authorize a recovery for mental anguish which might be suffered by plaintiff in the future, or for lost time down to the very time of the trial or for loss of earning power in the future, because it affirmatively appeared that the only injury for which, under the facts of the case, there could be liability was a trivial injury, and because any injury sustained by plaintiff as a result of his second and third accidents was not in law the direct and proximate result of the first accident; it affirmatively appearing from the evidence that the first accident was trivial, and the petition alleging no serious or permanent injury as a result of anything except the second and third accidents." This proposition is somewhat obscure, and, as we understand it, the contention is that neither the petition nor the facts of the case authorized a recovery for mental anguish which might be suffered by appellee in the future, or for previous lost time, or for impaired future earning capacity, because it affirmatively appears that the only injury for which appellant was liable was the blow upon the leg by the push car, which was trivial in its nature, and that the injuries from which he suffered were not caused by the blow up *Page 602 on the leg, but were the result of the second and third accidents, and therefore the injuries were not the direct and proximate result of the negligent blow upon the leg by the car.
The fifth assignment, submitted as a proposition, reads: "The court erred in overruling defendant's motion for a new trial, for the reason that the verdict of the jury is grossly excessive, and reflects that sympathy controlled the minds of the jury in fixing the amount of their verdict, and that the jury plainly took into consideration plaintiff's present physical condition, and did not properly consider what caused his present condition." This assignment raises the same question as to the proximate cause of the injury as was raised by the fourth assignment. The material allegations of the petition are quoted above, and the same is not subject to the objection urged, since it was averred that the injuries were directly caused and developed by the blow upon the leg from the car and consequent impairment of the muscles and nerves, or, if not, by the giving away of the leg when appellee was lifting the heavy timbers, or when he slipped and fell at the pay office, and that, in either event, they were the proximate result, in a natural and probable sequence, of the blow from the car.
We pass now to a consideration of the facts. It appears appellee is suffering from a dislocation of the right hip joint; the head of the femur bone having slipped out of its natural socket and was pressing upward against the pelvic bone, where it had formed a false joint Upon the former appeal it was held by the San Antonio Court of Civil Appeals that this condition was due to the fall at the pay station, and that such fall was caused by a greasy floor. It was further held that, such fall being intervening and entirely independent of the blow upon the leg by the car, a recovery could not be had for the injuries resulting from the same, unless the fall and its injurious consequences could have reasonably been anticipated as a result of the original act of negligence. The legal principles recognized by the San Antonio court are well settled and undisputed, but the record upon this appeal presents an entirely different state of facts. Appellant in its brief admits the evidence here differs from that upon the former appeal. Drs. Red, Stewart, and Knox, surgeons for appellant, examined plaintiff in October, 1907, at appellant's hospital, shortly after the fall at the pay office, and did not discover any dislocation or fracture of the hip. That a dislocation of the hip subsequently developed is not a controverted issue in the case. Dr. Red testified that in June, 1908, upon the occasion of the first trial, he and Dr. Knox examined appellee and found the entire right leg shortened and smaller than the left, and also found an upward dislocation of the hip. Dr. Red testified that he then found the right hip joint had formed a false joint and the head of the femur was pressing up against the pelvic bone. He further testified that, if a man received a heavy blow on the leg above the knee, injury to the nerves might result, which nerve injury might produce atrophy; that such atrophy was usually a slow process, so slow that at first the extent of the injury is not appreciated; it does not develop at first, but in the course of a few weeks would begin to be manifest. If the ligaments which hold the head of the femur or hip bone in place, because of want of supply from their connecting nerves or from inflammation, become atrophied or incapable of holding the hip joint in place, such hip joint might slip out and find lodgment in the pelvic region, where it would form a new juncture. In response to a hypothetical question propounded by appellant's counsel, he stated that the blow upon appellee's leg from the push car was not likely, alone and unaided, to produce the dislocated hip from which appellee was suffering, but admitted it might do so. From the testimony of Dr. J. G. Boyd, witness for appellee, it appears that the blow of the push car on appellee's leg may have caused an injury to the nerves, muscles, and ligaments, producing an atrophied or abnormal condition, which finally resulted in the dislocation of the hip and formation of a new joint, as it appeared was the condition of appellee, and that such dislocation and condition may have resulted entirely independent of and unaided by the giving away of the leg while unloading the timbers and the fall at the pay station. His attention being called to the fact that an examination of appellee at the hospital made by appellant's surgeons, Red, Knox, and Stewart, after the fall at the pay station, failing to disclose any such hip dislocation, he then testified that he would say the dislocation resulted from an inflammatory condition of the joint, and that he would attribute the inflammatory condition, under the history of the case as stated to him hypothetically, to the injury on the leg. Dr. Boyd also testified substantially the same as Dr. Red to the usual apparent triviality of injuries to the nerves and resulting atrophy in its incipiency, and that the manifestations of the injury were slow and progressive in character; the true seriousness and ultimate effect of the injury becoming apparent at a later date.
As upon the first trial the cause was submitted to the jury on the theory that the blow on the leg was the proximate cause of the injuries by appellee, and in that connection the jury was instructed: "If you believe from the evidence that plaintiff was caused a dislocation of the hip or other injuries by slipping on a greasy floor when he went to get his pay, then you will allow nothing therefor. You will consider the injuries, if any, to plaintiff from lifting the timber or planks in question only for the *Page 603 purpose of determining the progression and development, if such there was, of alleged injuries to the muscles, nerves, and tendons, if any, which you may from the evidence find to be the natural and proximate result of the blow or stroke from the car, if any." It therefore follows that the jury found that plaintiff's injuries were not due to the fall at the pay office. That they were warranted in this finding is apparent from the fact that the examination by the surgeons, Red, Stewart, and Knox, after the fall, failed to disclose any such dislocation, and the finding that it was due to the original blow upon the leg is entirely consistent and in harmony with the testimony of Red and Boyd relating to injuries to nerves produced by a blow, and, where the injury was to nerves and muscles of the leg, may eventually result in a dislocation of the hip joint
We thus see that upon the former appeal the San Antonio court held the evidence disclosed plaintiff's injuries to be the result of the fall at the pay office, which was an independent, intervening cause and disconnected agency from the original accident, and that such fall and its injurious consequences could not have been reasonably anticipated as a result of the original act of negligence. Upon the trial from which this appeal is prosecuted, the jury has made a contrary finding of fact, and, as we have seen, such finding is supported by the evidence. Appellee's condition was undoubtedly due either to the blow upon the leg or to the fall which he sustained at the pay office, and there is nothing in the evidence to suggest that the giving way of his leg while handling the timbers caused the same. The court, therefore, properly limited the jury in its consideration of this latter phase of the case, as indicated by the last paragraph of the portion of the charge above quoted.
What has been said disposes of the contention under the fifth assignment that the verdict of the jury is excessive. It cannot be, and is not contended, that $7,000, the amount of the judgment, is an excessive verdict if appellee's condition is the direct and proximate result of the blow from the push car. The contention is that his disabled condition is due to the second and third accidents for which appellant is not liable, and, for the reasons stated above, this contention is regarded as untenable.
Associate Justice McKENZIE does not concur in the views expressed herein and will later file his dissent.
The motion for rehearing is granted, and the judgment of the lower court affirmed.