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

• Decision Date: 03 January 1894
• Citation: 25 S.W. 64
• Parties: GALVESTON, H. & S. A. RY. CO. v. PARSLEY et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

25 S.W. 64

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

Court of Civil Appeals of Texas.

January 3, 1894.

Appeal from district court, Bexar county; W. W. King, Judge.

Action by Petra Parsley and others against the Galveston, Harrisburg & San Antonio Railway Company to recover for the alleged negligent killing of their intestate. There was judgment for plaintiffs, and defendant appeals. Affirmed.

Upson & Bergstrom, for appellant. Edward Dwyer, S. W. Ellis, and James Raley, for appellees.

FLY, J.

This is a suit brought by Petra Parsley, as surviving wife of Richard Parsley, for herself, and for the benefit of the other appellees James R. Parsley and John B. Parsley, minor children of herself and said Richard Parsley, deceased, to recover damages in the sum of $20,000 for the killing of said Richard Parsley on May 21, 1891. The material allegations, after stating that appellant had agreed to carry deceased safely from San Antonio to Houston, were as follows: "That, in disregard of its said duty, the said defendant did run its train of cars so carelessly and negligently, and did provide and furnish such inferior and defective machinery and cars and couplings and air brakes that the car on which the said Richard Parsley was riding became uncoupled through defective coupling machinery, and, the engine to which said car was originally attached having suddenly stopped, by the negligence of the engineer in charge of said engine, the car in which the said Parsley then and there was, ran into the said engine, and was so jolted, smashed, and broken up that a number of boxes contained in said car were turned and were thrown upon the said Richard Parsley, and so crushed and mangled him, the said Richard Parsley, as to cause the death of said Richard Parsley, which plaintiffs say occurred a few minutes after the collision between said engine and said car, as above set out. Plaintiffs say that at the time the said car became detached from the engine as aforesaid the said train was running at a high rate of speed; that the automatic air brakes attached to said train were, by the negligence and carelessness of the defendant, its servants and agents, out of order, defective, and imperfect, and would not, therefore, stop said train when the same became detached from the engine. Complainant says that the train on which the said Richard Parsley was at the time of his death was a passenger train, but that the conductor, engineer, fireman, and other officers and employes in charge of said train were incompetent, inexperienced, and unfit to run such train, for the reason that the said men in charge of said train had no experience in the management or running of a passenger train, but before taking charge of said train were and had been in the employment of the defendant in running and managing freight trains of the said defendant on its road. Plaintiffs further say that the engineer in charge of the engine of the said train was grossly careless, negligent, and incompetent, and at the time the said engine became detached from said train made no effort or attempt to avoid a collision between the said engine and the said train, but, as soon as the said engine became detached from the said train, the engineer and fireman in charge of said engine abandoned the same, thereby causing such collision, and the death of the said Richard Parsley. That the death of the said Richard Parsley was caused and brought about without any fault or neglect of the said Richard Parsley; and that the said Richard Parsley had a right, and it was his duty, to be in the car wherein he was killed, being the car assigned him by said defendant. That the said negligence that caused Richard Parsley's death occurred near Columbus, Texas, on defendant's line of railroad." To which petition appellant answered by general demurrer and general denial, and specially pleaded as follows: "And, further specially answering, defendant says that if the Richard Parsley, mentioned in plaintiffs' petition, was killed at the time and place stated, his death was caused by an unavoidable and unaccountable accident, without any negligence on the part of defendant or any of its employes, and was not caused by any defect in the coupling of the cars or otherwise of the train on which said Richard Parsley is alleged by plaintiffs to have been when receiving his fatal injuries. For further special answer, defendant says that it is informed and believes, and therefore charges the truth to be, that if said cars were uncoupled, and that through it said Richard Parsley was killed, such uncoupling was not through the knowledge, directions, or act of the defendant, or any of its employes or servants, but was the wanton and malicious act of some person unknown to defendant, and in no manner connected with, under the control, or in the service of, defendant, for which defendant is in no manner responsible; wherefore defendant prays that plaintiffs take nothing by their suit, that defendant have judgment for all costs of suit, and for general and special relief." The case was tried by a jury, and a verdict returned for $7,440, upon which judgment was rendered.

Conclusions of Fact.

(1) On the night of the 21st of May, 1891, Richard Parsley, who was the husband of appellee Petra Parsley, and the father of the minor appellees, James R. Parsley and John B. J. Parsley, was a passenger on a train consisting of five passenger and two baggage cars on the road of appellant near Columbus, Tex., when the train became detached from the locomotive, and, on account of the faulty coupling of the car and engine and carelessness of the engineer, an employe of appellant, and the failure of the air brakes to properly work on the train, there was a collision between the locomotive and train, in which Richard Parsley was crushed to death. (2) That said Richard Parsley was a passenger on the train with a number of other United States soldiers, and when killed was in the baggage car, where his duties required, and was there with the knowledge and consent of appellant, whose employes had full charge of the train, and under whose authority it was being run. (3) That prior to the collision the train had become uncoupled from the engine at the same place where it became uncoupled at time of collision. (4) That Richard Parsley was in the baggage car in company with three other soldiers, as a detail made by his superior officer, to take charge of the baggage and rations belonging to the troops, who were being transported by appellant in a train from San Antonio to Houston. (5) That Richard Parsley, at time of his death, was receiving $22 per month as a sergeant from the government, and in other ways was making about $35 per month, and besides was furnished by the government with quarters, rations, and clothing. That the rations were worth 40 cents a day, and the clothing $200 per annum. He was in the habit of furnishing his wife at least $25 per month of his earnings. (6) That, if the air brakes on the train had been in proper working order when the cars became uncoupled from the engine, they would, in a short distance, have stopped the train, and the collision would have been avoided; or, if the engineer had not stopped his engine, the cars would not have collided with it. That no effort was shown to have been made to use the hand brakes that were on the cars by the two brakemen, employes of appellant. (7) That there was no bell cord or rope connecting the cars with the engine, and that all regular passenger trains as a rule have bell cords.

Conclusions of Law.

The first assignment of error complains of the first and second paragraphs of the charge of the court, which are as follows: "First. If you believe from the testimony that Richard Parsley was killed through the negligence of the defendant company, its agents and employes, in the manner and form as alleged in plaintiff's petition, then you will find for plaintiffs the actual damages sustained. Second. But if you believe from the evidence that the defendant company, or its employes, were not guilty of the negligence as alleged, or that the death of Richard Parsley was the result of an unavoidable accident, or that his death was caused by the act of some wanton person not connected with the defendant company or in its employ, then you will find for the defendant company." This assignment is so complicated and complex, not to say unintelligible, that we might, under the statute and the rules, refuse to consider it. There is no error pointed out in the first clause of the charge above quoted; the only thing alleged in the assignment being that it "permits a recovery on the part of plaintiffs on the general ground that, if Richard Parsley was killed through the negligence of the defendant company, its agents and employes, in the manner and form as alleged in plaintiff's petition." What is the error relied upon in the paragraph alluded to? In the case of Earle v. Thomas, 14 Tex. 593, it is said: "What shall be sufficient special assignment of error is not susceptible of precise definition. It should be such as to draw the mind to the apprehension of the particular error intended to be relied upon." We are of the opinion, however, that the charge is not erroneous, and, as it made a finding for appellees dependent upon proof of all acts of negligence alleged in the petition, it erred, if at all, in favor of appellant, and made more onerous the duty of appellees in regard to the proof than perhaps was incumbent on them. There can certainly be no objection that is available to appellant to instructing a jury that the plaintiffs must, in order to recover, prove their case as alleged. The second...