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

• Court: Texas Court of Appeals
• Writing for the Court: James
• Citation: Galveston, H. & S. A. Ry. Co. v. Gormley, 27 S.W. 1051 (Tex. App. 1894)
• Decision Date: 17 October 1894
• Parties: GALVESTON, H. & S. A. RY. CO. v. GORMLEY et al.

27 S.W. 1051

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

Court of Civil Appeals of Texas.

October 17, 1894.

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

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

Thos. McNeal and Dwyer & Bates, for appellant. Atkinson & Abernethy, for appellees.

JAMES, C. J.

Lillie Gormley, widow of D. J. Gormley, brought this suit for herself and on behalf of David Gormley, the only child of D. J. Gormley, and of Thomas and Ann Gormley, the parents of D. J. Gormley, against appellant, for injury resulting in the death of D. J. Gormley, who was a brakeman in appellant's employ when he met his death. The act alleged to have been the cause of Gormley's death was that while he was at his post of duty he was struck by a spout attached to a water tank at Eagle Lake, belonging to defendant company, which spout was by defendant negligently and carelessly allowed to overhang the railroad track, and to overhang the car upon which he was riding, and he was thereby knocked off the car and run over by the train, producing injuries which terminated in death. Besides a general denial, defendant denied that it ever permitted the spout to hang over the railway track in such manner as to strike a man on its cars, and charged that if Gormley was knocked off the cars and killed it was through no fault of defendant, but was due to his own carelessness; that the spout was in perfect condition, and was not swinging over the track, but was in proper position, and would not have struck any one unless he negligently leaned over, and thereby came in contact with it; that the spout was made after the latest pattern, and had the latest appliances necessary to make it safe and secure. Defendant also pleaded that if the spout was left hanging it was the act of a fellow servant of deceased, and that, if struck as alleged, he was at the time acting in violation of the rules of defendant regulating his duties, with which he was familiar. The verdict was in the sum of $12,500, apportioned $6,250 to Lillie Gormley and $6,250 to her son, upon which judgment was entered in their favor, and adjudging that plaintiffs recover nothing in behalf of Thomas and Ann Gormley, the parents of deceased.

The second assignment of error was to allowing a witness — Chiner Robinson — to testify that about March 1, 1892 (six months before the event in question), he saw this spout out of repair, and hanging down, and that he at that time notified defendant's agent of the fact. We consider the allegations in the petition as charging that the overhanging of the spout was due to defendant's negligence. It is true that the allegation might imply that the negligence consisted in merely allowing it to hang down, although perfect in construction; yet it would fairly include a case also in which the overhanging of the spout was due to negligence in its construction or in keeping it in repair. Upon this view of it, the evidence objected to was proper as tending to show previous knowledge on the part of defendant of insufficiency in the appliance. Evidence of defective construction in the appliance was properly admitted, and therefore the sixth assignment of error is not well taken.

By the third and sixteenth assignments it is stated that the court erred in permitting witnesses to testify that Gormley was a healthy, vigorous man, and another witness as to his life expectancy, for the reason, as given, that the damages in such cases are "consequential and special, and must be specially pleaded." The petition alleged death from the negligent act of defendant, and damages therefrom to plaintiffs in the sum of $25,000. The damages contemplated by the act relating to this character of suit are pecuniary and compensatory, and there is no doubt in our minds that upon the petition as it stood any damages of that nature, and the extent thereof, could be proven without specially alleging same. The court charged the jury, in connection with its definition of negligence, that "negligence 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 and others are endangered than in ordinary cases;" and appellant urged that this was contrary to the rule that ordinary care only is exacted of parties, placed an unnecessary burden on defendant, and furthermore assumed that "deceased was careful and prudent." The charge is not subject to the criticisms, particularly the one last stated. It was not on the weight of evidence, and stated a correct principle. Railway Co. v. Randall, 50 Tex. 257.

The seventh assignment complains of the following charge: "It is legal and lawful for a railroad company to formulate and adopt certain rules for the government and observance of its employés in the operating and conducting of its business, and where said rules are reasonable, and are being enforced by the corporation adopting them, then said corporation having such reasonable rules enforcing their observance by its employés would not be liable in damages for the death of one of its employés if the death of said employé was occasioned by the willful or negligent disobedience of such rules, which were at the time known to said employé, and when the act of disobedience is the proximate cause of the death of said employé, unless the act is done under the influence of fear produced by the appearance of sudden danger. But in order to find for defendant company on this issue you must find from a preponderance of evidence that said rule was a reasonable rule; that the defendant company was exacting the observance of the same by its employé; and that said Gormley, deceased,...