Gallagher v. Bowie

• Decision Date: 18 May 1886
• Court: Texas Supreme Court
• Parties: GALLAGHER v. BOWIE.<SMALL><SUP>1</SUP></SMALL>

17 S.W. 407

GALLAGHER v. BOWIE.¹

Supreme Court of Texas.

May 18, 1886.

Appeal from district court, Parker county; R. E. BECKHAM, Judge.

Action by G. M. Bowie against J. J. Gallagher, the owner of a stage-coach, to recover for personal injuries to plaintiff's wife. The horses were left by the driver, unfastened and unattended, at a stopping place on the road, and while so left they became frightened and ran away. Mrs. Bowie, who was a passenger, jumped from the stage, and was injured. There was judgment for plaintiff, and defendant appeals. Affirmed.

Harcourt & Ball, for appellant. E. P. Nicholson, for appellee.

ROBERTSON, J.

It was held by this court in Ezell v. Dodson, 60 Tex. 331, that for personal injuries done to the wife the damages would be community property, and, generally, properly recoverable only at the suit of the husband. The elements of damage in such cases have been repeatedly stated in former decisions, and mental suffering has never been excluded from the list. The charge of the court on this branch of the case was entirely unexceptionable. Mrs. Bowie was a passenger in appellant's stage for hire, and appellant owed her the degree of care due by a common carrier of passengers. The court instructed the jury that it was the duty of the carrier to employ a competent driver, and of the driver to use the "utmost care" for the safety of the passengers. The jury was not instructed that the negligence of the driver was that of his master. This omission could only have prejudiced appellee. The charge properly stated the degree of care exacted by the law of carriers of passengers. Thomp. Carr. 200; Hutch. Carr. § 501; Shear. & R. Neg. § 266. That degree is generally described by the authorities as "the utmost," and the use of this expression in the charge was not objectionable. If it needed explanation or qualification, appellant should have requested a special charge. There was no lack of evidence to sustain the verdict. The horses were left practically free to run away, if they had that disposition. Any reasonable caution would have prevented the injury.

The judgment must be affirmed.

1. This case, filed May 18, 1886, is now published by request, with others, in order that the Southwestern Reporter may cover all the cases in volume 66, Texas Reports.