Galveston, H. & S. A. R. Co. v. Kutac

• Decision Date: 12 February 1889
• Citation: 11 S.W. 127
• Parties: GALVESTON, H. & S. A. R. CO. <I>v.</I> KUTAC <I>et al.</I>
• Court: Texas Supreme Court

11 S.W. 127

GALVESTON, H. & S. A. R. CO.

v. KUTAC et al.

Supreme Court of Texas.

February 12, 1889.

Commissioners' decision. Appeal from district court, Colorado county.

John Kutac, for himself, and as next friend for Rosalie and Johanna Kutac, sued the Galveston, Harrisburg & San Antonio Railroad Company for damages for the death of their mother, Annie Kutac, caused by the

alleged negligence of defendant's servants. There was a verdict and judgment for plaintiffs, and defendant appeals.

W. N. Shaw and Clark, Dyer & Bolinger, for appellant. Phelps & Lane and Ford, Thompson & Townsend, for appellees.

HOBBY, J.

This action was brought by the surviving children of Mrs. Annie Kutac, to recover actual and exemplary damages sustained by reason of her death, which resulted from a collision between a locomotive of defendant and a wagon in which she was riding. The plaintiffs claim that the proximate cause of the collision in which she received the injuries resulting in her death was the gross negligence of those in charge of the engine and cars of appellant in running the same at a dangerous and reckless rate of speed over its road, through the town of Schulenburg, and over the public highway where it crossed the railroad at the point of collision; and also in failing to give the statutory signals while approaching said crossing. The defense is that the collision was the direct result of the negligence of the driver of the wagon, and Joseph Kutac, her husband, and that of herself, all of whom were in the same wagon, in failing and neglecting to see the approaching engine; and in driving on the crossing of the track, without keeping the lookout the law requires; and in not using the ordinary care and prudence required of persons attempting to cross a railroad at a public crossing. There was also a general denial of negligence by defendant, and a plea in bar of a former judgment against Joseph Kutac, father of plaintiffs, rendered in the district court of Fayette county on the same cause of action, and in favor of defendant. Proof in support of this plea was excluded. A judgment was recovered by plaintiffs for the sum of $10,000 actual damages, as apportioned among them by the verdict.

Several errors are assigned for a reversal of the judgment, which will be considered without regard to the order of their presentation.

The petition alleged, as was also pleaded by defendant in bar of recovery in this action, that Joseph Kutac, the father of plaintiffs, and surviving husband of deceased, had previously sued the defendant upon the same cause of action in the district court of Fayette county, and in which suit a judgment was recovered against him by the defendant, and for this reason it was alleged in the petition he was not joined as a plaintiff in this cause. In support of the defendant's plea that the plaintiffs were estopped from a recovery by this final judgment against Joseph Kutac, certified copies of the proceedings in the district court of Fayette county were offered in evidence, as was proof also that it was disclosed on that trial that the plaintiffs herein were the surviving children of Mrs. Kutac, and were in existence. The defendant on the trial of this cause also requested an instruction to the effect that if Joseph Kutac had brought such a suit in a court of competent jurisdiction, and after a trial on the merits it terminated in a judgment in favor of defendant, and the proof therein showed the existence of the plaintiffs, and that they were the surviving children of the deceased, they would not be entitled to recover in this action. The evidence referred to was upon objection excluded, and the requested instruction refused. The defendant excepted, and assigns the ruling of the court as error. While it is true that the statute (Rev. St. art. 2899) authorizing the institution of suits of this character evidently intended that one suit should be brought, and although it has been so construed in several cases, (Railroad Co. v. Le Gierse, 51 Tex. 199; Railroad Co. v. Spiker, 59 Tex. 437,) it was not intended by the statute, or the construction of it in the cases mentioned, that a person having a right of action under that statute should be precluded, or his rights in any manner affected, by a judgment to which he was not a party, in favor of the defendant, against one who might also have a right of action with such person. If several persons having the right to sue would be concluded by a judgment to which they were not parties, against one having the right of action with them, the result would be that one would have the power to compromise and destroy the rights of all who could sue in the same action. There is nothing in this inconsistent with the rule that only one suit should be brought under the statute, and it is entirely within the defendant's power to require that only one such suit shall be brought. Where, as in the case tried in the district court of Fayette county, it was developed during the trial that the plaintiffs were then living, and were the surviving children of the deceased, and as such entitled to sue, the defendant, if it desired a judgment binding upon them, could have required them by a proper plea to be made parties plaintiff. Not having done so, he ought not to be heard now to insist that they are concluded by a judgment rendered in a suit to which they were not parties, and which he could have had them made parties to if he desired them bound by it. We think, therefore, that the plaintiffs in this case were not concluded by the judgment rendered in the suit, in the district court of Fayette county, brought by their father, Joseph Kutac, for himself only, and to which they were not parties; and the court did not err in excluding the evidence offered, nor in refusing the instruction requested on this point. But as the petition alleged the recovery of the judgment against him (Joseph Kutac) on the same cause of action on which the suits of the plaintiffs was founded, and as there was no controversy as to the fact that he was one of the parties having a right to sue under the statute for damages resulting from the death of Mrs. Kutac, the jury should have been instructed, in the event the plaintiffs were, under any circumstances, entitled to a verdict, that no damages sustained by Joseph Kutac, the surviving husband, if any were shown by the evidence, could be properly considered. The case called for such an instruction, we think.

Appellant urges under his assignments that there is an entire failure in the evidence to show negligence in its employes which contributed to the collision, and claims that the testimony shows that it was solely caused by the reckless conduct and gross negligence of the driver, and those in charge of the wagon. As set forth in their petition, the right of plaintiffs to recover is predicated upon two distinct acts of gross negligence upon the part of appellant, charged to have been the direct cause of the collision, notwithstanding the exercise of proper care by their mother, Joseph Kutac, and the driver, all of whom were in the wagon. They say that the collision occurred at one of the most public crossings of a constantly used highway; that "each of them used due care and prudence in their approach to the crossing, and neither of them by any act of negligence contributed to the collision." That at the time the train was being run at a dangerous and reckless speed; that no whistles were blown, bells rung, or other notice of the approach of the engine given, until so near the wagon that it was impossible for their mother, Kutac, or the driver to avoid it; and that appellant could have seen the wagon in time to have avoided it if its employes had used proper care, etc. If these allegations are supported by the evidence, unquestionably the plaintiffs would be entitled to a judgment. It cannot be insisted, we think, that there is any proof of the failure to give the statutory signals. The only testimony having any tendency to support this allegation is the evidence of the driver, Surcula, and that of Joseph Kutac, who testified by depositions to the effect "that they heard and saw no signals which should have been given by those in charge of the engine." The evidence of a number of witnesses, and all who witnessed the...