Citations
- 133 S.W. 1072
Full opinion text
LEVY, J.
(after stating the facts as above). The appellant asked for a continuance because of the absence óf Dr. Ward, whose testimony was desired to prove, from a medical standpoint, the character and extent of the injuries sustained by appellee. Dr. Ward, according to the application, attended appel-lee immediately after he was hurt, carefully examined and dressed his injuries, but did not treat him after the day of the injury. His testimony as to the injury would have been “that the only injury sustained by plaintiff outside of the jar caused by the fall, which was of little or no consequence, was a simple fracture of the thigh bone which did not in any way involve the joint, and which said fracture was promptly and properly set and dressed, and that the said fracture was not accompanied by any complications or any symptoms indicating any possible future complications, and that the said fracture was of such a kind and character that with proper care on the part of the patient the injury should have resulted in complete recovery within about 60 days and left plaintiff with a perfect limb at that time except a slight weakness therein for a few months thereafter.” After the motion was presented, appel-lee’s attorney asked the court to delay the ruling on the same and to grant him time to ascertain if the witness could be had, and the court granted the request. Afterwards the attorney for appellee stated to the court that he could not procure the attendance of Dr. Ward, and the facts set out in the application for a continuance were then formally admitted by appellee’s counsel as true, and the court overruled the application. The point presented by the appellant is that the error in overruling the application was not cured by the admission by appellee’s counsel of the truth of the facts stated in the motion, for the reason that before making the admission appellee introduced evidence in conflict with the facts stated in the motion. In this connection it appears that, after the request for delay in the ruling was granted, and before making the admission stated, the case proceeded to trial, and the appellee and Dr. Cooper testified as to injuries. Dr. Cooper testified that he assisted Dr. Ward in dressing the leg; that the femur, or hip bone, was broken about four or five inches below the joint; that “it was a simple fracture of the thigh bone, and was not accompanied with any complication of the joint or otherwise that I discovered”; that usually the femur, after being fractured, is never as strong as before, will get tired quicker, and will cause pain at times. Appellee testified that his leg was broken, and that his arm and shoulder were hurt, but that he did not have his arm and shoulder treated; that he was confined to his bed 35 days, and was then up for about 3 weeks before he got on crutches; that he went on crutches for about 6 months because his leg was not sufficiently strong to carry him, and pained him for 6 months. We do not think the testimony introduced by appellee as to his injuries was materially different from that set out in the motion for continuance. Appellee’s recovery was confined to injury to the leg, and not predicated on injury to the arm and shoulder. The court instructed the jury that “plaintiff has admitted that (copying the exact language in the application for a continuance as to what was expected to be proved by Dr. Ward). You are instructed that you must accept the facts so admitted to be absolutely true, and that you cannot disregard the same for any reason or under any circumstances.” And, as seen, if there was any conflict, the charge of the court entirely eliminated that testimony by positively stating to the jury that they could not disregard the admitted facts for any reason and must accept the same as “absolutely true.” Railway Co. v. Campbell, 32 Tex. Civ. App. 613, 75 S. W. 564.
Paragraph 5 of the court’s charge was an abstract statement of the law as to the duty to have premises in a reasonably safe condition for the use of persons invited thereon. It is not complained that the charge is not correct, but is erroneous and misleading when applied to the facts of the case at hand. When considered with the remaining portions of the charge and the' evidence, it was not misleading. The petition seeks to recover only as to express invitation to go upon this particular gallery where the injury occurred, and the evidence is undisputed that this gallery is where the injury occurred, and the court’s charge confined a finding to this particular gallery. Railway Co. v. Chase (Sup.) 126 S. W. 1109.
The subject-matter in the several special charges complained of in the third, fourth, sixth, and seventh assignments of error were fully and affirmatively covered by the main charge, and there was no error in refusing the special charges.
There was no error as presented in the fifth assignment, and it is overruled.
The charge complained of in the eighth assignment does not warrant a recovery for more lost time than was alleged in the petition that appellee had lost and would lose by reason of the injury to his leg. And there was no reversible error in any other respect complained of.
The evidence establishes, we think, that appellant was guilty of negligence as complained of in the petition, proximately causing the injury, and the appellee was not precluded by contributory negligence or assumed risk; and the ninth assignment is overruled.
The judgment was ordered affirmed.