Hamilton v. G. H. & S. A. R'Y Co.

• Decision Date: 29 March 1881
• Docket Number: Case No. 621.
• Citation: 54 Tex. 556
• Court: Texas Supreme Court
• Parties: ANN HAMILTON v. G. H. & S. A. R'Y CO.

54 Tex. 556

ANN HAMILTON

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

Case No. 621.

Supreme Court of Texas.

Mar. 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 of the plaintiff; that he was killed by the defendant's railroad on 10th of February, 1873; that he was in the employ of the company, and had been in their employ about two weeks; and that Brown could not have avoided the accident by the exercise of prudence.

H. Hughes testified for defendant that Mr. Nichols instructed Mr. Haley, yard master, that he must not keep the boy, Nathaniel Brown, in his employ without his mother's consent, and in a few minutes Brown came up and told Mr. Haley he had his mother's consent to the employment; and that after the death of Brown his mother received his wages.

While Mrs. Hamilton was being examined, she testified that at the time her son went into the employ of defendant she was confined to her bed by sickness, and had not been able to leave the house up to the time her son was killed by the road; that her house was within two and three hundred yards of the road; and that during her sickness her bed was by the window; that she saw from the window that her son was in the employ of the defendant by seeing him on the cars; but that she never, at any time, gave her consent, directly or indirectly, to his employment by the defendant.

On cross examination, defendant's counsel asked her “If her son did not tell her that he was employed by defendant as a brakeman.” To which the witness answered, “yes.” Plaintiff's counsel then asked witness to state the whole of the conversation between her and her said son at the time he told her that he was in defendant's employ. Defendant's counsel objected. The court sustained the objection, and refused to let the witness state the whole conversation, to which ruling plaintiff took bill of exceptions.

The evidence disclosed the following additional facts: Deceased was killed by defendant company's cars in charge of engineer James Long. Haley, yard master, whose duty it was to control the movements of trains, had gone to the depot to attend to freight bills; deceased came to the train and told Long that Haley wanted the empty cars detached from the train and thrown off the track on a switch; the train consisted of a car loaded with cotton, and an empty car. For the purpose of executing the order, deceased went in between the empty and loaded car to uncouple the cars, and while thus between the cars he gave the usual signal with his hand to back a little so he could get the bolt out. The engineer put the engine in motion and moved it about six or eight feet, when he discovered by bumping of loaded car that it had run over deceased, and he died in an hour afterward from the injury. The reason the engineer moved the car so far, was for the purpose of giving force enough to throw the empty car on the switch; moving the car an inch would have been sufficient to loosen the bolt; the car could have moved that little, and he understood by the signal that he was to move but a little; and deceased had been in the employ of defendant about two weeks.

Frank M. Spencer, for appellant.

Waul & Walker, for appellee.

I. The court properly ruled out the statement of plaintiff that she...