54 Tex. 556 (Tex. 1881), 621, Hamilton v. Galveston, H. & S.A. R'Y. Co.

Docket Nº:621.
Citation:54 Tex. 556
Opinion Judge:GOULD, ASSOCIATE JUSTICE.
Party Name:ANN HAMILTON v. G. H. & S. A. R'Y CO.
Attorney:Frank M. Spencer, for appellant. Waul & Walker, for appellee.
Case Date:March 29, 1881
Court:Supreme Court of Texas
 
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Page 556

54 Tex. 556 (Tex. 1881)

ANN HAMILTON

v.

G. H. & S. A. R'Y CO.

No. 621.

Supreme Court of Texas.

March 29, 1881

          APPEAL from Galveston. Tried below before the Hon. A. P. McCormick.

         Suit by Ann Hamilton against appellee for running its cars over Nathaniel Brown, aged fifteen years, only son of plaintiff, and killing him; alleging that Nathaniel Brown was employed by the company without the consent and against the will of plaintiff; that he was a minor of tender years, and employed at extra hazardous business by defendant--coupling and uncoupling cars; that his death was caused by the gross negligence of defendant, its servants, agents and employees, and by no fault or want of proper care of the minor; that defendant was guilty of gross neglect in not having a skillful and competent engineer and yard master on the train, in not having the train properly manned, and in having defective switch and rails.

         The defendant pleaded the general issue; that the action accrued to plaintiff more than three calendar months before the bringing of the suit; that Nathaniel Brown was employed by the defendant, with the consent of his mother, Ann Hamilton; that his business was to couple and uncouple cars, attend switches and give and repeat signals; that Nathaniel Brown was killed while in the employ of defendant, by getting his foot caught in the switch, and being run over by the cars of defendant company, and without fault or negligence on the part of defendant or his employees; that the train was well manned, and that the employees of defendant were careful, competent and well skilled in their duties.

         Ann Hamilton testified, among other things, that she was the mother and only surviving parent of Nathaniel Brown; that her said son was killed on defendant's railroad; that he was a minor, aged fifteen years and seventeen days; and that she never, at any time, directly or indirectly, gave her consent to his employment by defendant as an employee on their railroad; and during the time he had been working for defendant she was sick and confined to her house, but that, looking through her window, she saw her son on the trains and cars of defendant; and being asked by plaintiff's attorneys to state whether she made any remonstrance to her son for working on said road, she said, " I did." Counsel for defendant here objected to the question and answer, and asked that they be excluded from the jury; court sustained the objection and excluded the answer from the jury, to which rulings plaintiff took bill of exceptions. She testified that Nathaniel Brown was unmarried and had no child; that she was sick during all the time her son was with the railroad; that her bed was by the window, and she saw her son on the cars of defendant.

         Haley, yard master of defendant, testified that he knew Brown; that he was the son...

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