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

• Decision Date: 13 October 1897
• Parties: GALVESTON, H. & S. A. RY. CO. v. BURNETT et al.
• Court: Texas Court of Appeals

42 S.W. 314

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

Court of Civil Appeals of Texas.

October 13, 1897.

Appeal from district court, Gonzales county; M. Kennon, Judge.

Action by Lillie Burnett and others against the Galveston, Harrisburg & San Antonio Railway Company to recover for injuries causing the death of D. J. Gormley. Judgment for plaintiffs, and defendant appeals. Affirmed.

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

NEILL, J.

This is the third appeal of the railroad company from judgments against it in this cause. Our opinions on the former appeals are reported in 27 S. W. 1052 and 35 S. W. 488. In the first opinion referred to will be found a statement of the nature of the suit, and of the pleadings of the respective parties, to which statement we will add that, since the action was brought, Lillie Gormley married V. D. Burnett, who joined with her in its prosecution, and that appellant, by a supplemental answer, pleaded such marriage both in bar of Lillie's action and in mitigation of her damages. The judgment now appealed from is for $6,500, of which $2,500 is apportioned to Lillie Burnett and the balance to David J. Gormley, the infant son of the deceased.

Conclusions of Fact.

On the 27th day of August, 1892, the appellee Lillie Burnett was the wife of D. J. Gormley. The appellee David J. Gormley is his son, and Thomas and Ann Gormley are deceased's parents. On the date above mentioned, D. J. Gormley was in the employ of appellant company, in the capacity of a brakeman on one of its freight trains, which was then being run over its road. That on the night of the day stated D. J. Gormley was sitting on top of one of the cars of said moving train, in the performance of the duty of his employment, and that, while so riding upon said car in his place of duty, he was, without any fault or negligence on his part proximately contributing to the accident, struck by a spout attached to one of appellant's water tanks, which spout the appellant negligently allowed to be and remain out of repair and to overhang its railroad track and the car upon which Gormley was sitting; and the force of the blow from said spout knocked him off the car, and he was run over by the cars attached to said train, and thereby so injured that he died on the following day. That by reason of his death, which was proximately caused by said negligence of appellant, his wife, Lillie, was damaged in the sum of $2,500, and his son, David J., in the sum of $4,000.

Conclusions of Law.

We will premise these conclusions by saying that we do not propose to discuss all of the 34 assignments of error filed by appellant, for many of them are disposed of by our findings of fact, and a number of them are identical with those urged by appellant and passed upon in our opinions upon the former appeals.

1. No error is shown by the failure of the court to permit T. J. McQueeney, appellant's division superintendent, who was one of its witnesses and testified upon the trial, to remain in the court room, during the trial, after the rule had been invoked as to witnesses. As to whether this witness should have been released from the rule was a matter addressed to the sound discretion of the court, and the record does not indicate that such discretion was in any way abused. Nor is there anything in the record tending in the least to show that appellant would have been benefited by this witness' "co-operating with and aiding counsel in the development of appellant's defense," for it cannot be seen how the defense could have been more fully developed or ably conducted than it was by the attorneys who represented appellant upon the trial.

2. The fact...