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

• Decision Date: 28 October 1896
• Citation: 38 S.W. 813
• Parties: GALVESTON, H. & S. A. RY. CO. v. BONNET.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

38 S.W. 813

GALVESTON, H. & S. A. RY. CO. v. BONNET.¹

Court of Civil Appeals of Texas.

October 28, 1896.

Appeal from district court, Val Verde county; Walter Gillis, Judge.

Action by H. D. Bonnet against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Clark, Summerlin & Fuller and Baker, Botts, Baker & Lovett, for appellant. Joseph Jones and H. C. Carter, for appellee.

NEILL, J.

This suit was brought by the appellee to recover of appellant damages for the death of his son, Herman. This is the second appeal in this case, and a statement of the nature of the case may be seen in the opinion of the supreme court. Bonnet v. Railway Co., 33 S. W. 334.

Conclusions of Fact.

Herman Bonnet was the son of appellee, and in his twenty-second year when, on the 14th of July, 1893, he was killed. At the time of his death, he was an employé of appellant, and working with a bridge gang under the control of W. T. Garvin, a "scratch boss," and had been for about three weeks prior thereto. On the day of his death, he was at work, under Garvin's control and direction, upon one of appellant's bridges, removing guard rails. The deceased had never worked at that particular kind of work before, and had been engaged in it only an hour before he was killed, and up to that time had assisted in removing only one rail. The guard rails were iron, about 18 feet long, and weighed between 300 and 400 pounds. The safe and usual mode of moving such rails from bridges was upon a "push car." In order to do such work by hand with safety, six or eight strong and able-bodied men would be required. To move such a rail from a bridge by hand with four men was an unusual and improper method, and fraught with unusual danger and hazard,—such as was not incident to the usual and ordinary mode of doing such work. On account of his inexperience in such work, and ignorance of the safe mode of doing it, Herman was unconscious of the unusual danger attending carrying guard rails by the hands of four men from the bridge. The deceased and three other of his co-employés were ordered by the "scratch boss" to move the guard rail from the bridge. They raised the rail, and started to carry it off, in obedience to such order, when his co-employé, who, with him, was carrying the rear end, fell, thereby throwing the entire weight of that end on the deceased, whereby he was thrown from the bridge, and instantly killed. In his effort to do the work, in obedience to his boss, Herman used ordinary care and diligence, and was guilty of no negligence contributing to his death. It was negligence in the appellant, through its vice principal, Garvin, to order the deceased and three more to remove the guard rail from the bridge by hand, which negligence was the direct and proximate cause of Herman's death. The appellee was damaged by the negligent act of appellant, in causing the death of his son, in the sum of $3,125.

Conclusions of Law.

1. The pecuniary loss to the father from the death of his son must almost necessarily be proved by circumstances. Among the circumstances going to show such loss is the disposition of the latter to contribute pecuniarily to the aid of the latter. Railway Co. v. Johnston, 78 Tex. 542, 15 S. W. 104. And, as the disposition and feelings of a person may be proved by his expressions, the declarations of the deceased, testified to by the appellee, were, in connection with other testimony, admissible in evidence for the purpose of showing that his son was disposed to aid appellee pecuniarily. In Railway Co. v. Lee, 70 Tex. 503, 7 S. W. 857, the fact that deceased's "devotion to his mother was such that his neighbors could testify to repeated declarations that he would support her as long as she lived" was considered by the supreme court as a ground for its affirming a judgment upon a verdict larger than under the testimony that court would have probably found. If the "repeated declarations" "that his neighbors could testify to" were inadmissible as evidence, the court would certainly have not given them the consideration indicated by its opinion.

2. Upon the trial the appellee was permitted to testify, over appellant's objections, which were that the testimony was immaterial, irrelevant, and prejudicial, as follows: "I have no money, but little property, and am very poor." Such testimony, in connection with other evidence introduced, was proper to show a reasonable expectation of pecuniary aid by the father from his son, but not for the purpose of increasing the damages. Railroad Co. v. Kindred, 57 Tex. 498; Brunswig v. White, 70 Tex. 504, 8 S. W. 85. The trial court, in admitting this testimony, was careful to instruct the jury that it could not be considered for the purpose of increasing damages, if plaintiff was entitled to recover any, but that they should consider it for the sole purpose of tending to show plaintiff's expectation, if any he had, in receiving aid from his son; thus demonstrating that it was admitted for and restricted to the purpose of its admission stated in the rule announced in the decisions just referred to.

3. The testimony of W. E. Schrin shows as much knowledge as to deceased's experience in handling guard rails as one can reasonably be expected to have of the experience of another. He had known young Bonnet for two years prior to his death, knew the various vocations he had pursued, and was himself a bridge carpenter, working with the same gang that the young man was when he met his death. Therefore we think that the trial court did not err in permitting the witness to testify, over appellant's objection that he had no knowledge of such fact, that Herman had no experience in handling guard rails. The objection to the testimony was not upon the ground that it was merely the opinion of the witness, but that his answers showed he had no knowledge of the fact testified to.

4. The sixth paragraph of the court's charge is as follows: "Contributory negligence is the failure to use that ordinary care and diligence that would be expected of an ordinarily prudent person under like circumstances to avoid an injury. Thus, even though you may find that the defendant was negligent, still, if you further find that Herman Bonnet did not exercise that ordinary care and diligence to prevent injury to himself that would be expected of an ordinarily prudent person situated as he was, you should find for the defendant." This part of the charge is assigned as error, for the following reasons: First, it is not based on the evidence; second, it fails to instruct that a failure to use that ordinary care that would commonly or ordinarily be used by an ordinarily prudent person under like circumstances would be contributory negligence; third, it eliminates from the case the doing of an act upon the part of deceased that an ordinarily...