Brown v. Sullivan

• Decision Date: 16 October 1888
• Citation: 10 S.W. 288
• Parties: BROWN <I>v.</I> SULLIVAN.
• Court: Texas Supreme Court

Page 288

10 S.W. 288

BROWNv.

SULLIVAN.

Supreme Court of Texas.

October 16, 1888.

Appeal from district court, Harrison county; J. G. HAZELWOOD, Judge.

F. H. Prendergast, for appellant. James Turner, for appellee.

GAINES, J.

This action was brought in the court below by Owen Sullivan, the appellee in this court, to recover of John C. Brown, as receiver of the Texas & Pacific Railway Company, damages for injuries to plaintiff's wife, alleged to have been caused by the negligence of the employes running a train which was operated upon a railroad which was in charge of the receiver. It appears from the testimony that the plaintiff and his wife were keeping a boarding car for the receiver in connection with a construction train, and that the boarding car and other cars, having been attached to an engine for the purpose of moving it, and of placing a water car in proximity to it at the station where it was situated, were started with a jerk, thereby throwing Mrs. Sullivan out of the door, and upon the track, dislocating her arm, breaking her leg, and inflicting other injuries. She had just been asked by the conductor and brakeman where she would have the water car placed, and was standing in front of and near the door, when the car started. As to the suddenness and force of the movement in starting the car, the evidence was conflicting. Mrs. Sullivan testified, in effect, that the start was very quick and violent, and that it threw her out of the door. Pauline Scott, a servant in her employ, also testified that she was standing in the car, and was thrown down. It also appeared that the stove in the car, belonging to plaintiff, was broken. The employes of the receiver in charge of the train gave testimony tending to show that the jerk in starting was not unusual. With two exceptions the assignments of error are based upon the charge of the court, and the refusal to give instructions asked by the appellant.

The charge, we think, correctly presented the law of the case. The jury are told, in effect, that the plaintiff could not recover, unless the injury was caused by the negligence of defendant's servants; and are repeatedly instructed that, even in that case, the plaintiff could not recover if the negligence of his wife contributed to the injury. By the repetition of the charge upon the law of contributory negligence the court, it would seem, desired to make that question prominent, and to impress upon the jury the importance of giving it a careful consideration. In one paragraph of the charge the court instructed the jury, in effect, that the defendant would be responsible if the injury was caused by the negligence of its servants, "although there may have been negligence on the part of plaintiff's wife, unless it appears that under the circumstances she could, by the exercise of ordinary care, have avoided the consequence of the defendant's negligence;" and it is urged that this instruction is erroneous, because it places the burden of proof upon the wrong party. This court, following the courts of England, the supreme court of the United States, and the majority of the courts of the several states, holds, as a general rule, that, in actions of this character, a defendant who relies upon contributory negligence as a defense must allege and prove it. Railway Co. v. Murphy, 46 Tex. 356; Railway Co. v. Spicker, 61 Tex. 427; Railway Co. v. Cowser 57 Tex. 293. A seeming modification of the general rule has been recognized in a case where, by the plaintiff's own testimony, a suspicion was created that his own negligence may have contributed to the injury. Railroad Co. v. Crowder, 63 Tex. 502. In the present case the situation and acts of the persons who participated in the transaction which led to the injury, and especially the conduct of the injured party herself, were fully disclosed by the evidence; and it was proper to instruct the jury to find for the plaintiff, if the injury was caused by the negligence of the defendant's employes, unless they found that plaintiff's wife was at the same time guilty of ordinary negligence which contributed to the injury.

It is also complained that "the court erred in the sixth paragraph of the charge in charging the jury that if defendant, by its agents, could by ordinary care have avoided the consequences of Mrs. Sullivan's negligence, or by direct act of its agents caused the act which produced the injury, plaintiff can recover. This was error, because there was no evidence that defendant could have avoided the consequences of Mrs. Sullivan's negligence." We are not prepared to say that there was no evidence which authorized this instruction. It does not directly appear that the conductor saw Mrs. Sullivan at the time he signaled the engineer to move the train, but it does appear that but a short while before he had approached the boarding car to ask her where she would have the water car put; and it is not reasonable to infer that he may have been in a situation to have known of her danger, if in fact she was in any danger, from starting the car, if moved in a careful manner. But in no event is it probable that the jury were misled by the instruction.

It is also complained the court erred in instructing the jury that the plaintiff could recover for his wife's mental suffering, because it is insisted there was no evidence that she suffered pain of mind. It is settled in this state that mental suffering is an element of actual damages, in this class of cases. Where serious...