Chicago, R. I. & G. Ry. Co. v. Trippett

• Decision Date: 18 April 1908
• Court: Texas Court of Appeals
• Parties: CHICAGO, R. I. & G. RY. CO. v. TRIPPETT.

111 S.W. 761

CHICAGO, R. I. & G. RY. CO. v. TRIPPETT.

Court of Civil Appeals of Texas.

April 18, 1908.

Rehearing Denied May 23, 1908.

Appeal from District Court, Tarrant County; Mike E. Smith, Judge.

Action by Mrs. W. W. Trippett against the Chicago, Rock Island & Gulf Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

N. H. Lassiter and Robert Harrison, for appellant. R. T. Moreland and R. C. Porter, for appellee.

Statement.

STEPHENS, J.

W. W. Trippett, while a passenger on one of appellant's trains, was killed in a collision between it and another of its trains in the city of Ft. Worth. This suit was brought by the appellee, his widow, who recovered damages in the sum of $11,490, from which this appeal is prosecuted; this being the third case to come before us arising out of that collision. See Chicago, Rock Island & Gulf Ry. Co. v. Poore (Tex. Civ. App.) 108 S. W. 504. The questions raised by the assignments relate only to the measure of damages and the amount of the recovery.

Conclusions.

The charge on the measure of damages, to which the first error is assigned, was as follows: "As to the plaintiff, Mrs. W. W. Trippett, you are instructed to return a verdict in her favor, and assess her damages at such a sum of money as in your judgment from all the facts and circumstances in the case will reasonably and fairly compensate her for the pecuniary aids and benefits she had a reasonable expectation of receiving from said W. W. Trippett had he lived, also, the reasonable and necessary expense incurred on account of the burial of deceased; but you will exclude from your consideration in estimating the damages any mental distress, if any, incurred because of his death." It is insisted that this charge was misleading, in that it excluded compensation for mental distress without also excluding compensation for loss of society and companionship, in support of which the following cases are cited: I. & G. N. Ry. Co. v. McVey (Tex.) 87 S. W. 328, and I. & G. N. Ry. Co. v. Glover (Tex. Civ. App.) 88 S. W. 515. The charge condemned in the McVey Case is distinguishable, we think, from the charge above quoted, in that, instead of distinctly limiting the compensation to "pecuniary aids and benefits," it directed the jury to allow the plaintiffs such amount as would "fully compensate them for the actual damages, if any, sustained by them, as shown by the evidence," and such as would be "fairly proportioned to the injury sustained," which was followed by the following language, held to be misleading in that connection: "But you will not allow the plaintiffs anything by way of solace for the death of said Edward McVey, or for any sorrow or anguish suffered by them as result of such death." We are unable to so distinguish the charge in question from the charge condemned in the Glover Case, but that decision was rendered by the Court of Civil Appeals for the Third District on motion for rehearing in deference to the opinion of the Supreme Court in the McVey Case, in which the decision of the same Court of Civil Appeals had just been reversed. In other words, the Court of Civil Appeals felt constrained in the Glover Case to follow the decision of the Supreme Court in the McVey Case, but we are inclined to the opinion that the charges in the two cases were distinguishable, and, while the charge in the case...