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

• Decision Date: 17 January 1898
• Citation: 43 S.W. 877
• Parties: GALVESTON, H. & S. A. RY. CO. v. GORMLEY et al.
• Court: Texas Supreme Court

43 S.W. 877

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

Supreme Court of Texas.

January 17, 1898.

Error to court of civil appeals of Fourth supreme judicial district.

Action by Lillie Gormley (now Burnett) and others against the Galveston, Harrisburg & San Antonio Railway Company. A judgment entered on a verdict for plaintiffs was affirmed in the court of civil appeals (42 S. W. 314), and defendant brings error. Reversed.

McNeal, Harwood & Walsh and A. L. Jackson, for plaintiff in error. A. B. Davidson and Atkinson & Abernethy, for defendants in error.

BROWN, J.

This suit was instituted by Lillie Gormley (now Burnett) in her own right and as next friend of her infant son, D. J. Gormley, and by Thomas and Ann Gormley, to recover of the railroad company damages for the death of David Gormley, who was the husband of Lillie and the father of the minor, D. J. Gormley, and was the son of Thomas and Ann Gormley. During the pendency of the suit, Lillie Gormley intermarried with V. D. Burnett, who joins her in this action. The court of civil appeals filed the following 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 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." Upon a trial before a jury, verdict was returned and judgment rendered for the plaintiffs for $6,500, which was apportioned as follows: $2,500 to Lillie Burnett and $4,000 to the son, D. J. Gormley, which judgment was affirmed by the court of civil appeals.

In its application for this writ of error the railroad company sets up a number of grounds that we do not think it necessary to give special attention to, because they are either immaterial or not well taken. We will consider such of the grounds presented in the petition for writ of error as we deem to be material and necessary to be examined with a view to another trial.

The judge of the trial court charged the jury as follows: "(4) Negligence, in a general sense, is any omission to perform a duty imposed by law for the protection of one's own person or property or the person or property of another. (5) Negligence to some extent should be measured by the character, risk, and exposure of the business engaged in, and the degree of care of all parties is higher when the lives and limbs of themselves or others are endangered than in ordinary cases." "(7) By ordinary care is meant that degree of care which may reasonably be expected of a person in the situation of the person alleged to have been injured at the time the injury was inflicted."

The fourth and fifth paragraphs of the court's charge to the jury announce abstract principles of law, which furnished no guide to the jury in deciding upon the issue of negligence. That portion of the fifth paragraph which informed the jury that "the degree of care of all parties is higher when the lives and limbs of themselves or others are endangered than in ordinary cases" is not correct, as applied to this case. According to that statement, the degree of care required of the defendant towards the deceased would be higher if his life and limbs were endangered in the service than towards another employé who was not exposed to such danger. The law imposed upon the defendant the exercise of ordinary care to provide for each and all employés machinery, roadbed, and appliances reasonably safe, and to exercise like care to maintain them in that condition. The degree of care does not vary with the increase or diminution of danger. It continues to be ordinary in degree, but the quantum of diligence to be used differs under different...