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

• Decision Date: 04 December 1907
• Citation: 106 S.W. 705
• Parties: GALVESTON, H. & S. A. RY. CO. v. WALKER et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

106 S.W. 705

GALVESTON, H. & S. A. RY. CO. v. WALKER et al.^*

Court of Civil Appeals of Texas.

December 4, 1907.

Rehearing Denied January 8, 1908.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by Ethel Rosalie Walker, Clarence Edwin Canfield, and in behalf of Joe Canfield, if living, against the Galveston, Harrisburg & San Antonio Railway Company. From judgments for the plaintiffs, except Canfield, defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood, Newton & Ward, and W. B. Teagarden, for appellant. J. R. Norton, James Routledge, and Bertrand & Arnold, for appellees.

JAMES, C. J.

The action was brought by a next friend for the minors Ethel Rosalie Walker and Clarence Edwin Canfield, who were children of Mrs. Lena Leeseman Canfield (also known as Lena Leeseman Walker). The petition alleged that she was married first to James Walker, who was dead, and married the second time to Joe Canfield, the father of the minor, Edwin; that said Joe Canfield had abandoned the said Lena and said minors, and has not been heard of for seven years, and his whereabouts cannot be discovered, and is believed to be dead, but, in the event he be living, the action is brought in his behalf also. The cause of action was the death of said mother, who was killed by being run over by one of appellant's cars in its yards, in San Antonio, on or about March 20, 1897. It was alleged, among other things: (1) That at this place, which was a public crossing at Burleson and Walnut streets, defendant had gates, and that its agent or watchman at said crossing gates negligently failed to give any warning of the approach of said cars, and negligently opened the gates, and negligently invited said decedent to cross at a time when cars were about to or were in the act of crossing, thus negligently inducing the public and decedent to attempt to cross when there was great danger of her being killed by the cars. (2) That at the time she was invited by defendant's servants to cross when they knew, or ought to have known by the exercise of ordinary care, that she would probably be killed if she attempted to do so. (3) That the night was dark and impossible for decedent to see approaching cars, as said place was poorly lighted, and that she, relying on the said invitation and customs, endeavored to cross; that defendant negligently backed or shoved over said crossing some cars, having negligently failed to place any light or watchman at the end of the cars to notify persons of its approach, and negligently failed to ring a bell or blow a whistle for that purpose, and negligently failed to comply with a certain city ordinance with regard to ringing the bell. Defendant pleaded by general demurrer, and special exception, general denial and contributory negligence, and also by plea of limitation against any claim in behalf of Joe Canfield. There was a verdict against Joe Canfield, and in favor of the plaintiff Ethel for $2,000 and of the plaintiff Clarence for $2,500.

There was evidence that the two children were illegitimate children of the decedent Lena, and that she was killed through the negligence of defendant, without contributory negligence on her part. The facts upon which these general conclusions concerning negligence are based will be referred to in connection with the appropriate assignments.

The first assignment of error, also the second, third, and fourth, complain of refused instructions and present the question whether or not our statute giving a right of action for the death of a mother to children of such person embraces illegitimate children. The view of the trial judge was that the right extended to such children, and he refused all instructions that were asked to the contrary. We are of opinion that he did not err. It has been the legislative policy in this state to treat illegitimates as children, as far as a relationship to or through their mother is concerned. In our statute of descent and distribution such a child is given inheritable blood, and placed on the same footing as a legitimate child, with reference to its mother. Berry v. Powell, 19 Tex. Ct. Rep. 718,¹ and cases there cited. There can be no doubt that in this state the mother of such a child is legally entitled to its custody, its services, and bound for its support. Under these circumstances, it is difficult to see, in fact, we fail to see, wherein the status of such a child in reference to its mother is in law any different from that of a legitimate child. In other words, the law regards it as her child. Having clothed it with the relationship and attributes of a child, it is believed that the Legislature intended by the use of the word "children" in the statute to include illegitimate children as parties entitled to maintain the action in so far as they claim with reference to their mother. The rule that a statute in derogation of the common law is to be construed strictly is responsible for the decisions cited by appellant sustaining the contrary view. That rule had been abolished by statute in this state. Turner v. Cross, 83...