Burlington-Rock Island R. Co. v. Ellison, 2160.

• Decision Date: 19 October 1939
• Docket Number: No. 2160.,2160.
• Citation: 134 S.W.2d 306
• Parties: BURLINGTON-ROCK ISLAND R. CO. v. ELLISON et al.
• Court: Texas Court of Appeals

134 S.W.2d 306

BURLINGTON-ROCK ISLAND R. CO. v. ELLISON et al.

No. 2160.

Court of Civil Appeals of Texas. Waco.

October 19, 1939.

Rehearing Denied December 21, 1939.

Appeal from District Court, Leon County; Sam Holland, Judge.

Action by Jack Ellison and others against the Burlington-Rock Island Railroad Company for the death of W. L. Ellison, allegedly sustained through negligent operation of one of defendant's trains. From an adverse judgment, defendant appeals.

Affirmed in part and reversed in part and remanded.

Thompson & Barwise and Luther Hudson, all of Ft. Worth, and Bennett & Bennett, of Normangee, for appellant.

Dean & Dean, of Navasota, for appellees.

GALLAGHER, Chief Justice.

This suit was instituted by the surviving sons and daughters of W. L. Ellison all of whom were adults, to recover against Burlington-Rock Island Railroad Company, a corporation, damages alleged to have been suffered by them by reason of the death of their said father, which death they alleged resulted from the negligence of the agents, servants and employees of said Railroad in operating one of its trains through the city of Normangee. The parties will be designated as in the trial court. The cause was submitted on special issues, in response to which the jury found, in substance, that defendant's employees were negligent in the operation of such train and that such negligence was the proximate cause of the death of said W. L. Ellison. The jury found that plaintiffs had suffered damages on account of the death of their said father in the sum of $4000, and as instructed by the court, apportioned such damage among the plaintiffs severally. The court entered judgment on the verdict in favor of plaintiff W. N. Ellison for the sum of $1000 and in favor of plaintiff Bulah Ellison for the sum of $1500, being the amounts apportioned by the jury to them respectively. In that connection, the court held that the findings of the jury awarding damages to each of the other plaintiffs were without support in the evidence, set such findings aside and entered judgment that said plaintiffs take nothing herein. None of said plaintiffs complain of such action in the trial court nor do any of them complain thereof in this court.

The defendant presents an assignment in which it contends that the court erred in submitting the measure of damages. Said issue was submitted in the following language: "What sum of money, if paid now in cash, do you find from a preponderance of the evidence will fairly and reasonably compensate plaintiffs for the pecuniary damages sustained by them as a direct and proximate result of the death of W. L. Ellison, if any * * * In answering the above question you will take into consideration the value of any money or thing of value, if any, which you find from a preponderance of the evidence that W. L. Ellison would reasonably have...