Int'l&g. N. R. R. Co. v. Kindred

• Decision Date: 17 December 1882
• Docket Number: Case No. 1280.
• Citation: 57 Tex. 491
• Court: Texas Supreme Court
• Parties: THE INTERNATIONAL & G. N. R. R. CO. AND THE MISSOURI PACIFIC R. R. CO. v. MARTHA KINDRED.

57 Tex. 491

THE INTERNATIONAL & G. N. R. R. CO. AND THE MISSOURI PACIFIC R. R. CO.

v.MARTHA KINDRED.

Case No. 1280.

Supreme Court of Texas.

Dec. 17, 1882.

APPEAL from Anderson. Tried below before the Hon. Peyton F. Edwards.

The opinion contains a very full statement of the record.

Greenwood & Gooch, for appellants.

I. The right of appellee to maintain this action was purely a statutory right, and the appellee, to show herself entitled to maintain her action under the statute, must show that a right of action accrued to her dead son which could and did survive to her; but having shown in her petition, and by the evidence, that the death of her son was simultaneous with the injury, she has shown that no cause of action accrued to her son to survive to her. See R. S., arts. 2900, 2903; Const., art. XVI, sec. 26; Hollenbeck v. Berkshire R. Co., 9 Cush., 481;Kearney v. Boston & Worc. R. Co., Id., 108; Bancroft v. Boston & W. R. Co., 11 Allen, 349; Pierce on Railroads, p. 385.

II. The court erred in overruling the motion of defendants to suppress the deposition of John Macke, as shown in bill of exceptions No. 1, there being no interrogatories propounded to John Macke, and no commission to take John Macke's deposition, but upon the contrary, the interrogatories were propounded to John McKay, and the commission authorized the taking of the deposition of John McKay. See R. S., art. 2219; Garner v. Cutler, 28 Tex., 182;Brown v. Barry, 3 Dall., 367.

III. The court erred in permitting the plaintiff to read to the jury the following portion of the plaintiff's deposition, to wit: “Witness had no means of support except her own labor, and the labor of her son up to the date of his death, the same having been objected to by the defendants upon the ground that it was irrelevant; that the poverty of the plaintiff, or her helplessness, could not increase or diminish her claim to damages.” See Conant v. Griffin, 48 Ill., 411; Chicago & N. W. R. Co. v. Bayfield, 37 Mich.; Denver S. P. & P. R. Co. v. Woodward, 4 Col., 1, 162;Chicago & N. W. R. Co. v. Moranda, 93 Ill., 302;Illinois Cent. R. Co. v. Bache, 55 Ill., 379; Chicago & N. W. R. Co. v. Howard, 6 Brad. (Ill.), 569; Central R. Co. v. Moore, 61 Ga., 151;Potter v. Chicago & N. W. R. Co., 21 Wis., 372;22 Wis., 615;Barley v. Chicago & A. R. Co., 4 Biss., 430; Pierce on Railroads, 397.

IV. The court erred in permitting the plaintiff to read the answer of John Macke, as follows, in answer to the third cross-interrogatory of defendants, to wit: “Ed. Dowd said he reported the cars in bad condition, and witness knows the cars were brought to Houston for repairs, about two weeks before Kindred was killed; witness don't know to whom report was made,”--the defendants having objected to so much of said testimony as relates to what Dowd said, upon the ground that it was hearsay. The statements of an agent are admissible to charge the principal, only when they are a part of the res gestæ. They are not admissible when made out of the presence of the principal and to a third person, having nothing to do with the subject matter, and at a time when the agent was not engaged in the business to which the controversy relates. Gonzales College v. McHugh, 26 Tex., 677; Whiteside v. Maegasel, 51 Ill.; Griffin v. Montgomery & C. R. R. Co., 26 Ga., 111;Robinson v. Fitchburg R. R. Co., 7 Gray, 92.

V. The verdict of the jury is contrary to the law as charged by the court, and against the law and evidence in this: 1. The court charged the jury--“In order, then, for the plaintiff to recover, the proof must satisfy you, first, that the railroad company knew of said defect, or by the use of reasonable diligence and care might have ascertained the defect, and so knowing, failed to repair it within a reasonable time. Second. That Kindred did not know of said defect in fact, and that it was not such a defect as he could have ascertained with his senses by the use of ordinary care on his part at the time he attempted to use the brake. Third. That it was not the duty of Kindred to inspect the train and know its condition, and see that it was repaired.” Where a man has been employed by a railroad company as conductor to take charge of a train of cars to be used for construction and repairs at intermediate points on the railroad, and where it was one of his duties, imposed upon him as such conductor, to inspect such train, and to keep it in repair with the means furnished by the company, and if not furnished, to make a requisition on the company's principal repair officer for such means; and where a brake upon one of the cars in his charge got out of repair for the want of a nut or screw on the brake-wheel to the brake-rod, so as to make it dangerous in its use; and where the conductor failed to inspect said brake, its defect being patent or plain to be seen, or where the conductor did inspect said brake and knew of its defects, the same being easy to repair, and the conductor having time, ability, and the means at hand to repair, failed to do so, and afterwards attempted to use such brake whilst the train was in motion, when the wheel thereof came off, which caused him to lose his balance and fall between the cars, and was crushed and instantly killed; and where the mother of such conductor brought an action for damages to herself against the railroad company, charging the railroad company with negligently causing the death of her son, and recovers a verdict and judgment for $1,999 against the railroad company,--in such a case such verdict and judgment was contrary to the law and the evidence, because in such case the deceased, by his negligence, contributed directly to his death, and such judgment should be reversed, because it is against the evidence. See McAfee v. Robertson, 41 Tex., 357; Railroad Company v. Doyle, 49 Tex., 199; Pierce on Railroads, p. 379, and authorities noted 4 on same page; Id., p. 380, and authorities in notes 1 and 2.

VI. Where the conductor of a construction train had knowledge of the defect in machinery, or being inspector of his own train, and having a reasonable opportunity to inform himself, and who ought to have known of such defects, he is presumed, by remaining in the particular service, to have assumed the risks of such voluntary exposure of himself in the use of such machinery, and he cannot recover for an injury resulting therefrom, and his knowledge has the same effect, whether the company was informed or ignorant of such defect.

VII. Where a mother, who is seventy-two years of age and in feeble health, and whose probable time of life cannot exceed seven years and seven months, and whose son has been killed by a railroad company, at the age of thirty-three, and from whom, when living, she had a reasonable expectation of receiving $120 per annum during the remainder of her life, in an action against the railroad company for negligently causing the death of such son, and thereby destroying her prospect of receiving the $120 per annum during the balance of her life, cannot legally recover more money than would be necessary to purchase an annuity of $120 per annum during the remainder of her life, and any sum of money found in excess of that sum is not authorized by the law of the land. Quin v. Moore, 15 N. Y., 432, 435;Telfor v. Northern R. Co., 1 Vroom, 188; Pym v. Great Northern R. Co., 4 Best. & S., 396; Paulmier v. Erie R. Co., 5 Vroom, 151;Kesler v. Smith, 66 N. C., 154;Burton v. Wil. & W. R. Co., 82 N. C., 504;Needham v. Grand Trunk R. Co., 38 Vt., 294; Pierce on the Law of Railroads, 393-399; 37 Mich., 205.R. A. Reeves, for appellee.

I. The effect of the statute is not to keep alive a cause of action that belonged to the deceased, but to give a remedy for the damages the survivors may have sustained by the death of the injured party. The injury to the survivors is the basis of the action. R. S., p. 419; Houston & T. C. R. R. Co. v. Cowser and Wife, Texas Law Jour., August 10, 1881, vol. IV, No. 48, p. 755; Railroad Co. v. Nixon, 52 Tex., 19; Southern Law Review, vol. I, No. 4, New Series, pp. 720-3, 727; Murphy v. N. Y. R. Co., 30 Conn., 184.

II. Appellee submits as a counter proposition: It was competent to prove the indigent and dependent condition of the plaintiff, and the pecuniary advantage of the life of her son after he arrived at age, to enable the jury to estimate the damages resulting from his death. Houston & T. C. R. Co. v. Cowser and Wife, referred to under first assignment; Houston & T. C. R. Co. v. Nixon, 52 Tex., 25;Potter v. Railroad Co., 21 Wis., 377; 2 Thomp. on Neg., pp. 1289-1292, 1263, sec. 48; Chicago v. Powers, 42 Ill., 170;Atchison v. Twine, 9 Kan., 350; Pierce on Railroads, pp. 398, 399, citing numerous authorities in the notes.

III. Appellee denies that appellants' objections, or any of them, afford any sufficient ground to set aside the verdict and judgment. Kindred did not know of the defects in the brakes, in the exercise of reasonable skill and diligence, and was not informed by the defendants; and in view of the circumstances under which he was appointed conductor and took charge of the train, he was without the means or the opportunity or the time for inspection, and the defects were not discoverable with ordinary care and attention. H. & T. C. R. Co. v. Dunham, 49 Tex., 181; I. & G. N. R. Co. v. Doyle, 49 Tex., 190; H. & T. C. R. Co. v. Oram, 49 Tex., 341; I. & G. N. R. Co. v. Halloran, 53 Tex., 53; Gal., H. & S. A. R. Co. v. Delahunty, 53 Tex., 209; H. & G. N. R. Co. v. Randall, 50 Tex., 254; 2 Thomp. on Neg., pp. 972, 979-81; sec. 10, note 3, p. 985; sec. 5, p. 984; sec. 4, pp. 986, 1015; Pierce on Railroads, pp. 380-1; G., H. & S. A. R. R. Co. v. Lempke, Galveston term, 1882.

IV. The master is liable to his servant for injuries resulting from a defect in his machinery, although the negligence of a fellow-servant contributes to the accident. Railway Co. v. Dunham, 49 Tex., 188, 189; 2 Thomp. on Neg., pp. 980,...