Ft. Worth & D. C. Ry. Co. v. Measles

Citation17 S.W. 124
PartiesFT. WORTH & D. C. RY. CO. v. MEASLES <I>et al.</I>
Decision Date03 June 1891
CourtSupreme Court of Texas

Action by Roena Measles and another against the Ft. Worth & Denver City Railway Company for personal injuries to their minor child. Verdict and judgment for plaintiffs, and defendant appeals. Modified and affirmed.

J. M. O'Neill, for appellant. G. G. Randell and W. W. Wilkins, for appellees.

TARLTON, J.

This suit was instituted in the district court of Wichita county by Roena Robertson, now Roena Measles, against the defendant, on the 5th day of October, 1887. After the institution of the suit, the plaintiff intermarried with James L. Measles, and on the 26th day of April, 1888, by leave of the court, amended her original petition, and joined the said James L. Measles with her as plaintiff. The suit was then prosecuted by appellees, plaintiffs below, against appellant, defendant below. By their amended petition, plaintiffs sought to recover of appellant damages alleged to have been sustained by them by reason of injuries received by John Robertson, a minor aged seven years, and son of Roena Measles, on the 24th day of July, 1887, while playing on a turn-table situated in Wichita Falls, in Wichita county, and owned and used by appellant in operating its railway through Wichita county; said injuries having been received by the said John Robertson by reason of the negligence of appellant in permitting said turn-table, a dangerous machine and easily set in motion, to remain unfastened and unguarded in an exposed place in the town, easy of access, on a much-used pathway, and near a public street or alley. Plaintiffs alleged that the turn-table was an attraction to children to play upon, which the children of the town did and had done for a long time prior to the date in question, as defendant, its agents and servants, knew, or might have known, by the use of proper diligence; that the child, John Robertson, being too young to appreciate and avoid the danger, was, on July 24, 1887, without the knowledge and consent of his mother, playing on said turn-table with other children of tender years, and, while so playing, his person, in the revolutions of the table, was caught between the portion in motion and that not in motion, and he was so injured that it became necessary to amputate his right leg, and his left leg was rendered permanently useless; that the boy was an obedient child, and before the injuries stated was healthy; and that he would have been of great service to his mother up to the time of his maturity. Plaintiffs claimed damages in the sum of $10,000, and alleged special damages as follows: $5,000 for loss by Roena Measles of the services of John Robertson; $500 expenses incurred for medical attention; $500 for medical services in the future required by the condition of John Robertson; $100 for nursing; and $100 for future nursing necessitated by the injuries complained of; and $50 for extra food. Defendant answered by general demurrer, special exceptions, and general denial; and on April 28, 1888, the jury by whom the case was tried returned a verdict, itemized as follows:

                Doctor's bills incurred during sickness
                of child ................................ $  500 00
                Drug bills incurred during sickness of
                child ...................................     38 00
                Lost labor of parent during sickness of
                child ...................................    200 00
                Extra food for child during sickness of
                child ...................................    200 00
                Diminished value of child's services to
                parents (caused by accident) until he
                is 21 ...................................  1,062 00
                                                           _________
                       Total amount of damages assessed.. $2,000 00
                

From the judgment entered on this verdict defendant appeals to this court.

Guy Holman, a witness for the plaintiffs, was permitted to testify, over the objection of defendant, that on one occasion, a year and a half before the trial, he and other boys were on the turn-table, pushing it around, and that it was not fastened. Defendant assigns as error the action of the court in admitting this evidence, which, it alleges was irrelevant to any issue in the case. In connection with this testimony, the witness further stated that he was injured on the occasion referred to; and it appears elsewhere from the evidence that suit had been brought in the district court of Wichita county by the witness Holman, on account of this injury. We think the evidence tended to support the allegations of plaintiff's petition to the effect that children had before played upon the turn-table, which averment, in connection with the further allegation that defendant knew this fact and knew the condition of the turn-table, was relevant and material on the issue of negligence. The objection was properly overruled. Facts relating to relevant facts are themselves relevant and admissible.

Another witness, C. E. Reid, clerk of the district court, testified, over objection by defendant, that a suit had been brought in that court against the defendant by Guy Holman, the boy who had previously testified, and that, as shown by the appearance docket, the suit was filed April 19, 1887. This is the suit above...

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