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

• Decision Date: 04 March 1896
• Citation: 35 S.W. 488
• Parties: GALVESTON, H. & S. A. RY. CO. v. GORMLEY et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

35 S.W. 488

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

Court of Civil Appeals of Texas.

March 4, 1896.

Appeal from district court, Gonzales county; T. H. Spooner, Judge.

Action by Lillie Gormley and others against the Galveston, Harrisburg & San Antonio Railway Company for injuries causing the death of D. G. Gormley. Judgment for plaintiffs, and defendant appeals. Reversed.

This is the second appeal in this cause (27 S. W. 1051), and the nature of the case need not be again stated.

McNeal, Harwood & Walsh, for appellant. A. B. Davidson and Atkinson & Abernethy, for appellees.

JAMES, C. J.

Defendant objected to the reading of the deposition of a witness who, it appears, was present at the trial. It further appears from the record that this witness was placed upon the stand by defendant, and examined and cross-examined by counsel. We hardly see how the reading of the deposition should have prejudiced defendant, under these circumstances. According to Schmick v. Noel, 64 Tex. 408, and O'Connor v. Andrews, 81 Tex. 37, 16 S. W. 628, it is held that there is no statute regulating the matter, and the discretion of the trial court will not be reviewed unless it is apparent that the case of the complaining party has been prejudiced thereby.

The second assignment shows no material error. A witness testified: "The man had his face turned towards the rear of the train. I saw his lantern fly up, and the man went down. Cooper [a bystander] said, `The man is killed.' Cooper and I went to him immediately." The objection is as to what witness heard Cooper say. The evidence was wholly unimportant and immaterial.

The third assignment is to the admission of the testimony of a witness (Robinson) stating that he had seen the water spout hanging down once or twice before the accident, and reported the fact to W. J. Robinson, agent of the company at that place, who replied that he would report it. It was shown by other testimony that Robinson was defendant's station agent at Eagle Lake, and that the tank was at the station. There was other testimony going to show a defective condition of the tank, with regard to the spout, at or about the time of the injury; and the testimony of this witness tended to show that defendant had been informed of its condition, and permitted it to so remain. It was properly admitted. See opinion on former appeal. 27 S. W. 1052.

The court did not err in allowing plaintiff to testify to her deceased husband's financial condition, and what property he owned, at the time of his death. She testified that he had nothing but his wages. She testified, also, that she had no other means of support, whatever. This testimony went to show the extent of his family's dependence on his life. It was proper for the jury to consider these matters on the question of damages (Railway Co. v. Lehmberg, 75 Tex. 68, 12 S. W. 838), and we fail to see that defendant could have sustained any legal injury by the admission of the evidence.

The sixth and ninth errors assigned are to permitting plaintiff to testify that her deceased husband had stated to her that his name was "Gormley," and in charging the jury as follows: "In this case, the plaintiffs having alleged that deceased * * * was named `D. J. Gormley,' but that he was sometimes known as `D. J. Gorman,' the jury are instructed that it is the identity of the person alleged to have been killed that is in issue before them, and not the true name of the deceased. If they find * * * that deceased was not related to plaintiffs as claimed by them, they will find against plaintiffs, regardless of whether deceased was named `Gormley' or `Gorman'; * * * but, if they find that deceased was related to plaintiff as claimed by them, then they will proceed to determine the right of the parties," etc., — and in refusing to give the following charge. "Plaintiffs sue for damages for the death of `D. J. Gormley' by the negligence of defendant. If the jury find from the evidence that the man killed by defendant at Eagle Lake on September 27, 1892, was named `David James Gorman,' then there is a variance between the allegations and proof, and you should return a verdict for the defendant." This last-mentioned charge was properly refused. The charge was a clear and correct presentation of the issue. Plaintiffs were entitled to recover if the deceased was their relative as stated, and the issue was, was he that person? If so, his name was immaterial. There was no conflict in the evidence as to his family being known both as "Gormley" and "Gorman," taking the facts as stated in appellant's brief, nor as to the person killed, bearing one or other of said names,...