City of Galveston v. Barbour

• Decision Date: 28 June 1884
• Docket Number: Case No. 5046.
• Citation: 62 Tex. 172
• Parties: THE CITY OF GALVESTON v. J. M. BARBOUR ET AL.
• Court: Texas Supreme Court

62 Tex. 172

THE CITY OF GALVESTON

v.J. M. BARBOUR ET AL.

Case No. 5046.

Supreme Court of Texas.

Jun. 28, 1884.

APPEAL from Galveston. Tried below before the Hon. Wm. H. Stewart.

The opinion states the case.

Geo. Mason, for appellant, on the measure of damages, cited: Blake, Adm'r, v. Midland R'y Co., 10 Eng. L. & E., 487; Penn. R'y Co. v. McClosky, 23 Pa. St., 526, 528; Oakland R'y Co. v. Feilding, 48 Pa. St., 320; North Penn. R. Co. v. Robinson, 44 Pa. St., 175; Balt. & Ohio R. R. Co. v. State of Maryland, 5 Am. Law Reg., 397; Chapman v. Rothwell, 1 E. B. & E., 168; Franklin v. Southeastern R'y Co., 3 H. & N., 211; Duchworth v. Johnson, 4 H. & N., 653; Armstrong v. Southeastern R'y Co., 11 Jur., 758; Saunders v. London & North Western R'y, 2 L. T. (N. S.), 153, C. P.; Gilbard v. Lancashire & Yorkshire R'y Co., 12 Law T., 356; Blake v. Midland R'y Co., 18 Q. B., 93.

On the admissibility of the declarations of the father, referred to in the opinion, he cited: Enos v. Tuttle, 3 Conn., 250;In reTaylor, 9 Paige, 611;Carter v. Buchannon, 3 Kelly, 513; Blood v. Rideout, 13 Met., 237; Boydon v. Burke, 14 How. (S. C.), 575; Scroggs v. State, 8 Smed. & Marsh., 722; Greenleaf on Ev., 137, note 21; State v. Davidson, 30 Vt., 377.

No briefs for appellees' counsel have reached the reporter.

STAYTON, ASSOCIATE JUSTICE.

The question of the liability of a municipal corporation for damages, for an injury resulting from neglect to keep its sidewalks and streets in repair, has been considered in the case of The City of Galveston v. Posnainsky, decided at the present term ( ante, p. 118); and for the reasons given, and upon the authorities cited in that case, we hold in this case that such a corporation is liable for such injury, in the absence of an express statute declaring the liability.

This action was brought by the appellees to recover damages for an injury which resulted in the death of their minor son, which, they allege, was caused by the neglect of the appellant to maintain in good condition one of the sidewalks of the city.

The court below sustained a demurrer to so much of the petition as set up injury to the feelings of the parents as an element of damage, and in reference to the measure of damage instructed the jury as follows: “And as to amount or measure of damage, there is no rule that I can give you as the proper measure thereof; if you should find the plaintiff entitled to damages, you must look to all the evidence and attendant circumstances to ascertain what amount of damages the plaintiffs are entitled to, proportioned to the injury resulting from the death.”

The appellant requested the court, in effect, to instruct the jury, if they found for the plaintiff, that they must consider, in determining the amount of damage, the pecuniary loss resulting to them through the death of their son, and that they could not give damage for distress, sorrow or mental suffering of the parents. These charges were refused.

It is well settled that, in actions of this character, no damage can be given for mental suffering of the person or persons for whose benefit such an action is brought; and although the court had sustained an exception to so much of the petition as set up mental suffering of the parents, yet, when requested, should have given a charge upon this subject; and especially so when the charge as given by the court was so general.

The charge given placed no limit on the discretion of the jury, and tended to influence the jury to believe that the law placed no restraint upon them, and left the whole matter to their unbridled and uninformed discretion.

In this class of cases, while it is difficult to prove, with that exactness which may be done in some other classes of cases, the actual damage to which the plaintiff or plaintiffs are entitled, yet it is not true that the law gives no measure of damage in such cases, and instructions should be given, definite in their character, as to the true measure. Pennsylvania R. R. Co. v. Vandever, 36 Penn. St., 303.

In such cases as this, the true measure of damages would be a sum equal to the pecuniary benefit the parents had a reasonable expectation of receiving from their child, had he not died; taking into consideration the fact that he was a minor. 2 Sedgwick on Damages, 537. And in addition to this, we are of the opinion, in cases in which the injury is to a minor child, that the parent may recover the cost of medical and other like expenses necessarily incurred.

There was no question of exemplary damages in this case.

There is no direct proof as to how the child received the injury of which it died, but it is contended that he received a wound on his foot from a projecting iron bolt in the sidewalk on one of the streets of the city of Galveston.

John M. Barbour, the father, and one of the plaintiffs, testified, over the objections of the appellant, that “next morning he (the father) told him (the son) to come and show the object that had hurt him. From what he said, witness examined a bolt in the curbing of the sidewalk on the west side of Eighteenth street, between postoffice and Market street, being the first bolt in the curbing next to the alley, and between the alley and Hibbert's store, and found two drops of blood right by the bolt.”

The witness then went on to describe the bolt, and stated that it projected above the curbing and had a sharp edge. He further stated that “the boy was with witness when he examined the bolt; witness went there to look at it in consequence of what had occurred between him and his son. The boy was...