St. Louis S. W. Ry. Co. of Texas v. Bradberry

There was testimony showing that the only cure known to the medical profession for a hernia like the one appellee suffered was a surgical operation, and testimony showing that appellee refused when urged by physicians to do so to submit to such an operation. In view of that testimony, appellant objected to the court's charge before it was read to the jury, on the ground that it did not present to them for determination a question "as to whether plaintiff," quoting, "did or did not use ordinary care in failing to submit to" an operation. Appellant did not formulate and present such a question to the court with a request to submit it to the jury, but did prepare and request the court to give in connection with a question propounded to the jury, to wit:

"What amount of damages, if any, do you find from the testimony that plaintiff has sustained, as the direct and proximate result of his injuries, if any?"

— a special charge as follows:

"It is the duty of one injured by the negligence of another to use ordinary care to lessen the damage resulting from the injury, and if you believe from the evidence that an ordinarily prudent person under similar circumstances would, within a reasonable time after he had been injured as was plaintiff, have been operated on for the hernia, and that plaintiff, had he been so operated on, would have been cured of the hernia within a reasonable time thereafter, then you should allow him only such damages as you may believe resulted to him from said hernia during the time intervening between the injury and the time that an ordinarily prudent person under similar circumstances would have been operated upon and cured of such hernia"

Appellant insists that the refusal of the court to give the requested instruction was error; or, if it was not, because the instruction was not a correct one, it was error for the court to fail to prepare and give a correct instruction with reference to the feature of the case the refused one was intended to cover.

It was ruled in Railway Co. v. Hagan, 42 Tex. Civ. App. 133,93 S.W. 1014, that while a plaintiff in a personal injury suit, guilty of negligence in failing to have a surgical operation performed which would have prevented part of the injury he suffered, could not recover for such part, he was entitled to recover for suffering he would have undergone in submitting to the operation. We think the jury would not have been authorized by the refused instruction, had it been given, to allow appellee anything on account of suffering they might have believed such an operation would have subjected him to had he had it performed, and therefore that the refusal of the court to give the instruction was not error.

It will be noted that the issue submitted to the jury was to determine the amount of damages, if any, appellee suffered "as the direct and proximate result of his injuries, if any." In connection with that issue the court instructed the jury they might —

"take into consideration the nature and extent of the plaintiff's injuries, if any; the pain, if any, he has suffered and will hereafter suffer; and the diminished ability, if any, to labor and earn money plaintiff has sustained as the direct and proximate result of such injuries."

It is plain that neither the issue as framed nor the instruction with reference to it was affirmatively erroneous, and that the error, if there was one, was one of omission only. The rule in this state denies a right in a party complaining to have a judgment reversed for such an error, where he has failed, as here, to formulate and request the court to give an instruction correctly presenting the omitted feature in the instruction given. Olds Motor Works v. Churchill, 175 S.W. 785, 787.

As we think the rule referred to requires us to overrule the contention in question, we have not thought it necessary to determine whether it should also be overruled on another ground urged by appellee, to wit, that the failure of a plaintiff in a personal injury case to have an operation performed which, if submitted to, testimony heard indicated might have prevented part of the injury suffered, "is but a branch of the doctrine of contributory negligence," as it was declared to be by the Supreme Court in Railway Co. v. McMannewitz, 70 Tex. 73, 8 S.W. 66. And see West Lumber Co. v. Keen, 221 S.W. 625; Baker v. Cobb, 221 S.W. 314; Railway Co. v. Shaklee, 138 S.W. 188; Railway Co. v. Magrill,15 Tex. Civ. App. 353, 40 S.W. 188. If such failure should be viewed from that standpoint, the contention is clearly not tenable, for appellant did not charge such negligence on the part of appellee in its pleadings, and the latter's pleadings did not suggest that he might have been guilty of such negligence. Of course, the failure of the trial court to submit an issue not made by the pleadings was not error.

As we view the testimony, it was sufficient to support the finding of the jury that Butler was guilty of negligence as charged against him, and it did not present an issue as to "assumed risk" on the part of appellee. Therefore the assignments presenting contentions as to those matters are overruled, as is also the one attacking the verdict as excessive.

The judgment is affirmed.