In Mitchell v. Akers, 401 S.W.2d 907 (Tex. Civ. App. 1966), a boy, age three years and eight months, drowned in a private swimming pool located on the defendant's property. Id. at 908.
The little boy had entered the pool area through an open gate. Id. No one witnessed the drowning, but a doctor who arrived on the scene shortly after the body was discovered examined the child and later opined "that the child died of drowning after struggling for 2 or 3 minutes before losing consciousness." Id. at 912. The doctor further testified that during the 2 or 3 minutes the child "probably endured physical pain and mental anguish."
The basis of the doctor's opinion that the child was conscious when he entered the pool was based on the absence of any "bruises or marks on the child" that "might indicate that the child may have fallen against a hard object and become unconscious before becoming immersed in the water." Id.
The Texas Court of Civil Appeals held that such evidence was sufficient to support an award in favor of the estate for the child's conscious pain and suffering. Id.