Gulf, C. & S. F. Ry. Co. v. Wilson

• Decision Date: 27 January 1891
• Citation: 15 S.W. 280
• Court: Texas Supreme Court
• Parties: GULF, C. & S. F. RY. CO. v. WILSON.

15 S.W. 280

GULF, C. & S. F. RY. CO. v. WILSON.

Supreme Court of Texas.

January 27, 1891.

Appeal from district court, Denton county.

J. W. Ferry, Alexander & Clark, and J. T. Bottorff, for appellant. J. A. Carroll and Smith & Bell, for appellee.

STAYTON, C. J.

Appellee was mail agent of the United States, whose duty it was to attend to the mail transported in a coach set apart and fitted up for that purpose. This car was in the train in advance of the passenger-coaches, and was derailed, plaintiff alleged, through the negligence of appellant and its servants, whereby he was injured, and for this he brought this action, which resulted in a judgment in his favor for $500. An exception to the petition, on the ground that it did not state the particular acts of negligence which caused the derailment of the car and injury to appellant, was overruled, and this is assigned as error. This question was considered in Railway Co. v. Smith, 74 Tex. 276, 11 S. W. Rep. 1104. In that case, as in this, the averments of the petition were, in substance, that the car in which the plaintiff was was derailed through the negligence of the railway company and its servants, and thus the plaintiff injured. This was held sufficient, and the reasons for this ruling, as well as the citation of cases supporting it, will be found in that case. There are some expressions in the opinion in Railway Co. v. Hennessey, 75 Tex. 155, 12 S. W. Rep. 608, which may seem to lead to a contrary conclusion, but an examination of the case will show that the question in it was whether the plaintiff should have been permitted to prove an act of negligence not alleged, when he had alleged that the accident resulted from other specific acts of negligence. The fifth assignment of error is not sustained by the record, in that it does not show that the court admitted evidence referred to in the assignment. With others, the court gave the following charge: "I further instruct you that in estimating the damages you find for plaintiff, if you find any for him, you are to take into consideration the testimony as to physical pain and injuries inflicted, and whether such injuries are permanent or not, the expenses in doctor's bills, or for medical attention, and his loss of time and wages; but you are not authorized to find damages for mental suffering or anguish, as that is not set forth and claimed in the petition." It is urged that this was error, in that the jury probably understood from it that the plaintiff was entitled to recover for loss of time as well as the wages he could have earned during the time he was rendered by his injuries unable to labor; but it seems to us that no jury of ordinary intelligence would so have understood the charge. The court gave the following charges: "(1) Railway companies, in transporting passengers upon their trains operated and managed by its employes must, while thus transporting such passengers, exercise a high degree of care in order to avoid accident or injury to such passengers; and the failure to exercise such care as a person of ordinary prudence under like circumstances would use is negligence. (2) If you find and believe from the evidence that on the 20th day of August, or at any time within one year next before the 25th day of October, 1887, a train of cars operated by the defendant company, its agents, servants, or employes, was wrecked in Bosque county, Tex., near Valley Mills, and that at the time of such wreck the plaintiff, R. J. Wilson, was traveling upon said train of cars as postal or mail clerk, in the employment of the United States government, and in charge of the mail matter on such train, then he would be entitled to recover of defendant...