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

• Decision Date: 23 January 1918
• Docket Number: (No. 5810.)
• Citation: 201 S.W. 270
• Court: Texas Court of Appeals
• Parties: GULF, C. & S. F. RY. CO. v. CARPENTER.

Page 270

201 S.W. 270

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

(No. 5810.)

Court of Civil Appeals of Texas. Austin.

January 23, 1918.

Rehearing Denied February 27, 1918.

Appeal from District Court, Bell County; F. M. Spann, Judge.

Action by Mrs. E. B. Carpenter, administratrix of E. B. Carpenter, deceased, against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Terry, Cavin & Mills, of Galveston, A. H. Culwell, of El Paso, and Chas. K. Lee, of Ft. Worth, for appellant. A. L. Curtis, of Belton, and Winbourn Pearce, of Temple, for appellee.

KEY, C. J.

Mrs. E. B. Carpenter brought this suit, as administratrix of the estate of her deceased husband, E. B. Carpenter, to recover damages on account of the death of her husband, she alleging that his death was caused by the wrongful and negligent conduct of the defendant, Gulf, Colorado & Santa Fé Railway Company. The suit was brought for the benefit of Mrs. Carpenter and five minor children of herself and E. B. Carpenter. The petition contained all the necessary allegations to warrant a recovery under the federal liability statute. The defendant answered by general and special exception, general denial, and plea of contributory negligence and assumed risk. There was a jury trial, which resulted in a verdict and judgment for the plaintiff for $35,000, apportioned as follows: $15,000 to Mrs. Carpenter, and $4,000 to each of the five minor children.

The defendant has appealed, and seeks a reversal upon several grounds, none of which presents new or difficult questions of law; and therefore, instead of spending time in a vain effort to convince every one of the correctness of our decision, we content ourselves with announcing our conclusions, without much elaboration, upon the points considered by us the most important. However, this course is not pursued for the purpose of gaining the approval of those who complain about long opinions in other peoples' cases, but complain still more if the appellate court fails to discuss every question decided against them in their own cases.

1. The main charge of the court is assailed as being erroneous, because it contained nothing specifically submitting to the jury the question of contributory negligence. Appellee's counsel make two answers to that criticism, both of which are believed to be sound, and which are: First, that the testimony did not raise the issue of contributory negligence, and therefore it was unnecessary to give any charge upon that subject; and, second, that the court gave two special charges upon that subject at the request of appellant, and therefore, if that issue was presented by the testimony, the requested instructions must be considered as supplements to the main charge, and as curing the omission complained of in the latter.

2. Unlike Lord Campbell's Act, and the statutes of most of the American states, the federal liability act, under which this suit was prosecuted, does not require the jury to make any apportionment of the damages awarded by the verdict. In this case, in obedience to the charge of the court, the jury made such apportionment, which counsel for appellant contend constitutes reversible error. At least two answers may be made to that contention, and these are:

First. It is quite certain that appellant was not injured by the apportionment referred to. According to...