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

• Citation: 36 S.W. 776
• Parties: GALVESTON, H & S. A. RY. CO. v. HARRIS et al.
• Decision Date: 28 May 1896
• Court: Texas Court of Appeals

36 S.W. 776

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

Court of Civil Appeals of Texas.

May 28, 1896.

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

Action by E. A. Harris and others against the Galveston, Harrisburg & San Antonio Railway Company for negligently causing the death of one Hattie Harris. There was a judgment for plaintiffs, and defendant appeals. Reversed.

Brown, Lane & Jackson, for appellant. J. W. Munson and Atkinson & Abernethy, for appellees.

PLEASANTS, J.

Appellees sued appellant for alleged pecuniary damage resulting to them from the death of one Hattie Harris, who was killed by a passing train upon defendant's railway in the town of Eagle Lake, while deceased was attempting to cross the railway at a public crossing in said town, and whose death was caused, as appellees alleged, by the gross negligence of the employés of the appellant; the alleged negligence consisting (1) in running the defendant's cars at the dangerous and reckless rate of speed of 25 or 30 miles an hour, and in violation of the ordinance of the town of Eagle Lake, which prohibited a greater speed than 6 miles an hour; (2) in permitting the crossing over its track to be in an unsafe and dangerous condition; (3) that, as the train approached the crossing, no bell was rung nor whistle blown. The deceased was the father and son of the appellees, and the petition alleged that he was a kind and indulgent and affectionate son and parent, and that he was earning at the time of his death $85 per month, and of which amount he contributed $70 monthly to the support of appellees; and appellees alleged their damage to be $50,000. Defendant company answered by general denial and by special plea charging contributory negligence by the deceased; and the plaintiffs, by replication, denied the averments of the defendant's special answer. Upon trial of the cause, verdict and judgment were rendered for plaintiffs for the sum of $2,600, and, new trial being denied the defendant, it appealed to this court.

The first error assigned is that the court excluded the testimony of two witnesses offered by the defendant to prove that the deceased expended his earnings upon a certain prostitute. This testimony, in the opinion of a majority of the court, was admissible for the purpose of contradicting the testimony of the plaintiff Mrs. Harris that her son expended most of his wages in support of herself and his children. There was no error in excluding the testimony of the witness W. T. Eldridge, stated under the second assignment. The answer to the question propounded to the witness would have been but his opinion deduced from the facts to which he had testified, and the case is not one falling within any of the exceptions to the rule which excludes the opinion of a witness. But the court should have admitted the testimony of this witness to the effect that some time in the fall previous to his death the deceased had approached the witness, and proposed to work for him for $35 per month. This evidence was admissible in rebuttal of the evidence on part of plaintiffs as to the monthly earnings of the deceased. The testimony of the witness Boedeker should have been admitted to show the points on the track of the railway at which signals were usually given by the engineer and fireman, evidence having been previously...