Galveston, H. & S. A. Ry. Co. v. Johnson

• Decision Date: 13 June 1900
• Citation: 58 S.W. 622
• Parties: GALVESTON, H. & S. A. RY. CO. v. JOHNSON et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

58 S.W. 622

GALVESTON, H. & S. A. RY. CO. v. JOHNSON et al.¹

Court of Civil Appeals of Texas.

June 13, 1900.

Appeal from district court, Bexar county; S. J. Brooks, Judge.

Action by Emrie Johnson, on behalf of herself and minor child, against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment in favor of plaintiff, defendant appeals. Modified.

Upson, Newton & Ward, for appellant. J. A. Buckler, for appellee.

JAMES, C. J.

Appellee, Emrie Johnson, brought this action to recover, on behalf of herself and her minor child, damages resulting from the death of her husband, George W. Johnson. The father and mother of Johnson were also named as plaintiffs, but no recovery was allowed them. The occurrence in which Johnson was killed was by the passenger train on which he was engineer running into an empty box car standing upon the main track near Missouri City. The forms of negligence alleged were that the empty box car had been negligently left by defendant's employés unblocked and unsecured upon a side track at Missouri City which connected with the main track, and without taking any precautions to prevent the car from escaping to the main track, as an ordinarily prudent person would have done, and as it was the duty of the station agent at Missouri City to have done; also, that the said side track was negligently constructed, and so allowed to remain, in that it was not provided with a derailing switch, so as to prevent the car from moving from it upon the main track; that said car negligently left upon the side track so negligently constructed, with nothing to impede its moving off, was blown from the side track out upon the main line, and permitted to remain there through the negligence of defendant, its agents and employés,—especially that of the station agent,—until the train ran into it, which resulted in Johnson's death. The court submitted the case upon the single issue of negligence in regard to the car being left upon the side track unblocked and without brakes set. The jury were clearly instructed, if they believed that defendant was not guilty of negligence in failing to have the brakes set or the wheels blocked, if there was any such failure, to find for defendant. We find, as conclusions from the testimony, that defendant was negligent, and that such negligence was the cause of the killing of Johnson.

There is no need of discussing the first assignment, in view of article 3022, Sayles' Civ. St.

By the second assignment the court is said to have erred in overruling an exception to the petition upon the ground that it did not appear that defendant was negligent in not providing a derailing switch, or that the failure to provide one caused or contributed to the accident. We do not so read the petition. Nor do we agree with the construction sought to be placed upon the petition by the third assignment of error. In view of the submission upon the one issue as already explained, the matters dealt with by these assignments, and also the fourth, would not, if founded in fact, require a reversal.

The fifth, sixth, and seventh assignments are criticisms of the charge, none of which is deemed substantial. It does not seem necessary to discuss the fifth. As to the seventh, there could be no error in failing to submit the issue mentioned, unless the requested charge upon that subject were a correct one. The requested charge was: "If, from the evidence, you believe that the employés of the defendant left the brakes set on the said cars on the said track, and that thereafter some person unknown to the defendant removed said brakes and left them unset, and that the act of such unknown person caused, or in any manner contributed to, said cars being on the main track, you will find for the defendant." This charge would have ignored the question of negligence in allowing the car to remain in such condition on the side track, which would have been sufficient to render defendant responsible, although the act of some third person in removing the brakes may have contributed to the occurrence. The general charge required a verdict for defendant if it had not been negligent in this matter. These remarks apply in part, also, to the sixth assignment, and dispose, also, of the ninth assignment. Under these assignments there is no statement of testimony to substantiate the claim made "that the undisputed testimony showed that, in the exercise of reasonable care, it was not necessary to have the wheels blocked," which of itself would excuse us from inquiring into that question. But, as pointed out by appellee, there was evidence that the evening before the accident the station agent was notified by the owners of the posts in the cars that the cars had been unloaded, and that the agent did nothing to see whether the brakes were set or not, and that by the rules of the company it was his duty to see that cars thus left standing were secured by brakes set and the wheels blocked.

The eighth assignment questions this charge: "If, in view of foregoing instructions, your verdict shall be for plaintiffs, and you award them damages, then in fixing the amount of your verdict you will allow them such a sum of money as you find from the evidence will be a fair compensation to them for the pecuniary loss, if any, sustained by them in the death of said Geo. W. Johnson, separating by your verdict the sum, if any, you allow to plaintiff Emrie Johnson for herself, and the sum, if any, for the benefit of her daughter, Frances Johnson." The objection is that they were not entitled to recover a fair compensation; that what might be a fair compensation to them might not be what they had a reasonable expectation of receiving from the deceased had he lived. The charge embodied a correct proposition of law. By special requests the court might have been required to go more particularly into explanation of the measure of damages, and there was a charge asked for this purpose, which, however, was properly refused, because it attempted to limit the recovery "to such sum as would represent the present worth of the future earnings of deceased, which they had a reasonable expectation he would have contributed to them had he lived; such present worth being calculated upon the basis of six per cent per annum." The last clause of this instruction vitiated it. See Railway Co. v. Dehnisch, 57 S. W. 64, recently decided by this court; also, ...