City of Marshall v. McAllister

• Citation: 54 S.W. 1068
• Parties: CITY OF MARSHALL v. McALLISTER.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 25 November 1899
• Court: Court of Appeals of Texas

54 S.W. 1068

CITY OF MARSHALL v. McALLISTER.¹

Court of Civil Appeals of Texas.

November 25, 1899.

Appeal from district court, Harrison county; W. J. Graham, Judge.

Action by Katie McAllister against city of Marshall. Judgment for plaintiff. Defendant appeals. Affirmed.

Arthur H. Cooper, for appellant. T. P. Young, for appellee.

RAINEY, J.

This suit was brought by G. L. McAllister against the city of Marshall to recover damages for personal injuries and injury to personal property, caused by a defective bridge, which it is alleged the city had negligently failed to keep in repair. During the pendency of the suit, G. L. McAllister died, and his surviving wife and sole legatee made herself party plaintiff, and prosecuted the suit. Upon trial of the cause plaintiff recovered, and the city appeals.

The first assignment complains of the court in overruling defendant's plea in abatement; the ground urged in said plea being that said G. L. McAllister had died after the institution of the suit, and that his cause of action, both for damages as to personal injuries and injuries to his personal property, abated with his death. On a former appeal of this case we held that, under article 3353a, Rev. St., a right of action for the personal injuries sustained by G. L. McAllister survived to his widow and sole legatee, Mrs. McAllister. City of Marshall v. McAllister, 43 S. W. 1043. This holding is adhered to. See Pritchard v. Railway Co. (Ga.) 13 S. E. 493, 14 L. R. A. 721. Injury to personal property affects the estate, and an action therefor does not abate upon the death of the owner, but survives to his heirs or legal representatives. Railroad Co. v. Freeman, 57 Tex. 156. On the death of G. L. McAllister his right of action to recover for injuries to his person and property survived to Mrs. McAllister, and the court properly overruled defendant's plea in abatement.

The court's charge as to the degree of care incumbent upon the city authorities to properly construct and keep the bridge in repair, and upon the issue of contributory negligence on the part of McAllister in driving upon the bridge at a gait faster than a walk, was correct, and sufficiently full, and there was no error in the court's refusing to give the special instructions on these issues asked by appellant. City of Marshall v. McAllister, supra.

We think there was no error in the court refusing the special charge requested, which related to McAllister being guilty of contributory negligence in driving an unruly team, as there is no evidence showing that the injury was occasioned by the team being unruly.

The fifth assignment of...