Fort Worth & Denver City Ry. Co. v. Bozeman, 5082.

• Decision Date: 20 November 1939
• Docket Number: No. 5082.,5082.
• Citation: 135 S.W.2d 275
• Parties: FORT WORTH & DENVER CITY RY. CO. v. BOZEMAN et ux.
• Court: Texas Court of Appeals

135 S.W.2d 275

FORT WORTH & DENVER CITY RY. CO. v. BOZEMAN et ux.

No. 5082.

Court of Civil Appeals of Texas. Amarillo.

November 20, 1939.

Rehearing Denied January 2, 1940.

Appeal from District Court, Donley County; Hon. A. S. Moss, Judge.

Action by J. W. Bozeman and wife against Fort Worth & Denver City Railway Company for the death of plaintiff's son resulting from a railroad crossing collision. From a judgment for the plaintiff, defendant appeals.

Reversed and remanded.

Thompson & Barwise and Luther Hudson, all of Fort Worth, J. R. Porter, of Clarendon, and Simpson, Dorenfield & Fullingim, of Amarillo, for appellant.

James Spiller, of Panhandle, and W. T. Link, of Clarendon, for appellees.

JACKSON, Chief Justice.

The appellees, J. W. Bozeman and Bessie M. Bozeman, husband and wife, instituted this suit in the District Court of Donley County, Texas, against the appellant, Fort Worth & Denver City Railway Company, to recover $20,000 damages for the death of their son, James Henry Bozeman, nineteen years and eleven months old, who died as the result of a collision at a railroad crossing between an automobile driven by his grandfather in which the deceased was riding as a guest and one of appellant's passenger trains approximately eight miles west of the city of Clarendon.

The appellees alleged that on the occasion of the collision and death of their son he was traveling in a southerly direction across appellant's track on a public road; that the road crossed the tracks just east of a cut approximately 850 feet in length and varying in depth from three to fifteen feet on account of which it was difficult to see a train approaching.

The appellees charge appellant with negligence in operating the train at an excessive rate of speed, failure to give warning of the train's approach either by ringing the bell or blowing the whistle, failure to keep a continuous and vigilant lookout, failure to slow down when going through the cut and approaching the crossing and failure to keep a danger signal at such crossing, each of which acts is alleged to be the proximate cause of the death of James Henry Bozeman.

The appellant answered by general demurrer, general denial, admitted the collision at the crossing and that the death of James Henry Bozeman resulted therefrom, but specially denied negligence or liability; pleaded that its tracks ran approximately east and west; that the passenger train was approaching the crossing from the west and the automobile was approaching the crossing from the north; that James M. Bozeman and his two grandsons, James William and James Henry, the deceased, had been to a house just north of the railroad, bought some produce and loaded it into a trailer attached to the car, after which they got into the car which was driven by the grandfather and traveled south to the crossing; that the automobile passed over the old highway, which extended parallel to and north of the tracks of the railroad, and while the deceased was crossing the old highway he had a clear and unobstructed view of the train that the whistle was blown and the bell rung; that the deceased and the other occupants of the car were familiar with the crossing; that each failed to maintain a proper lookout in the direction from which the train was approaching while crossing the old highway; each failed to listen for the approach of the train or the signals, all of which it asserts was negligence and the proximate cause of the death of the deceased.

No attack is made on the sufficiency of the pleading and what we have stated, together with the findings of the jury herein given, will, we think, be sufficient to reveal the matters pleaded and the questions presented for review.

The case was submitted to the jury on special issues, many of which are immaterial to this appeal, but the substance of those we deem essential to a discussion of the assignments urged will be stated.

By their verdict the jury found in effect that appellant was guilty of negligence in failing to blow the whistle eighty rods from the crossing, in failing to ring the bell, in failing to keep a lookout, in failing to maintain a danger signal at the crossing, in operating its train at a dangerous rate of speed, and that the crossing was obstructed. The jury acquitted James Henry Bozeman of contributory negligence; found there was no joint enterprize between the occupants of the car; that the collision was not an unavoidable accident and that the negligence of James M. Bozeman, the grandfather, was not the sole proximate cause of the collision and awarded appellees damages in the sum of $2,775.

Upon these findings the court rendered judgment for the appellees for the amount of the verdict and the railroad appealed.

The appellant assails as erroneous the charge of the court on the measure of damages for the reason that it failed to affirmatively exclude from the consideration of the jury the loss of the society and companionship of the deceased by appellees.

The testimony is that the deceased still resided with his parents in their home.

The court in his charge on the measure of damages instructed the jury that in ascertaining the amount of such damages they should consider what the evidence disclosed relative to the value in dollars and cents if paid now would compensate appellees for the services of the deceased from the time of his death until he became twenty-one years of age, but to deduct from the amount so found the moneys they would have expended for his maintenance during such period. He also charged that appellees should be compensated for any pecuniary benefit the evidence showed they had a reasonable expectation of receiving from the deceased after he reached the age of twenty-one years. The charge on the measure of damages concludes in this language: "In determining the damages sustained by plaintiffs by reason of the death of said James Henry Bozeman you are instructed that you cannot take into consideration the mental suffering, grief or bereavement incident to the death of the said James Henry Bozeman on the part of the plaintiffs." The instruction did not exclude as damages the loss by appellees of the society and companionship of deceased.

The appellant presented written objections and exceptions to the charge because it did not affirmatively exclude from the jury's consideration as damages the loss of the society and companionship of the deceased by the appellees, and in its written objections requested the court to affirmatively instruct the jury not to allow appellees anything for such loss of the companionship or the society, but did not write and present to the court on a separate sheet of paper a special charge.

The appellees contend that the charge of the court is not erroneous but if it is, the error was not properly preserved since appellant failed to prepare and request the court to give a special charge eliminating such error.

There has been some confusion and diversity of opinion among the courts relative to when an objection was sufficient to preserve an error, and when a special charge should be requested; however, it is apparently settled that if the error complained of is a complete failure to submit an issue raised by pleading and evidence such issue must be prepared and submitted in writing to the court to preserve the error but, if the trial court has attempted to submit the issue and has submitted it erroneously or defectively, an objection is sufficient. Without an extended discussion of the question we think it sufficient to quote what Chief Justice Cureton says in Gulf, C. & S. F. R. Co. v. Conley et ux., 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183: "In the instance of a defective or erroneous charge on a subject or issue which the court has undertaken to charge upon, the objections required by article 1971 take the place of special charges and render it unnecessary that the latter be tendered. It is immaterial whether the matter objected to in the court's charge is a mere defective or incomplete statement of the law or issue to be determined, or is affirmatively erroneous; objections which sufficiently specify the error will preserve the point on appeal, without the necessity of again directing the court's attention to the same subject by special charge."

The court undertook to charge on the measure of damages and it is obvious that the charge was a defective or incomplete statement of the law; the objections specifically specified the error and appellant was not required to prepare and tender to the court a special charge to preserve the error. Harris v. Leslie, Chief Justice et al., 128 Tex. 81, 96 S.W.2d 276; Texas & N. O. R. Co. v. Crow et al., 132 Tex. 465, 123 S.W.2d 649; Dallas Ry. & Terminal Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683; Hines v. Kelley, Tex.Com.App., 252 S.W. 1033.

The courts have frequently announced that in an action for damages claimed for death the instruction should expressly exclude from the consideration of the jury grief, loss of society, companionship, mental pain and anguish, and that the failure to...