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

• Citation: 29 S.W. 558
• Parties: GULF, C. & S. F. RY. CO. v. JOHN et al.
• Decision Date: 09 January 1895
• Court: Texas Court of Appeals

Page 558

29 S.W. 558

GULF, C. & S. F. RY. CO. v. JOHN et al.

Court of Civil Appeals of Texas.

January 9, 1895.

Appeal from district court, Cooke county; D. E. Barrett, Judge.

Action by Loie John and others, widow and children of Frank John, deceased, against the Gulf, Colorado & Santa Fé Railway Company, for the death of said Frank John. From a judgment for plaintiffs, defendant appeals. Affirmed.

J. W. Terry, for appellant. J. E. Hayworth and Davis & Garnett, for appellees.

Conclusions of Fact.

STEPHENS, J.

By the derailment of a switch engine near Cameron, Tex., the engineer lost his life. His widow and children recovered a judgment in the sum of $8,000, as compensation for the loss thus sustained. Their contention was that the defective condition of the track caused the wreck; that of the company, that it was due to the negligence of the engineer, in running too fast. Upon these issues the evidence was conflicting, — that of the fireman, brakeman, and a freight clerk who was riding in the caboose of the ditched train, corroborated by some other witnesses, tending to show that the roadbed and track, at the place of the wreck, were in bad condition, with rotten ties, to which the rails were insecurely fastened, and that in consequence, though the train was running at the usual rate of speed of 12 or 15 miles per hour, the track spread, and the train was derailed; that of many other witnesses, however, tending strongly to show that the roadbed and track were in a reasonably safe condition, and that the derailment resulted, not from the spreading of the track, but from teetering, caused by a reckless rate of speed, of 30 or 40 miles per hour, while 20 miles was the maximum rate allowed, under the rules of the company, for trains of that class. The verdict of the jury, determining these issues in favor of appellees, is not, we think, without evidence to support it, and we therefore decline to disturb it.

Conclusions of Law.

1. Special exceptions to so much of appellees' petition as charged a defective condition of appellant's road at other places than that of the wreck were overruled; but as little or no testimony was offered to support these charges, and the court expressly directed the jury to disregard the evidence as to its condition at any other place than the wreck, the third and fourth assignments of error, challenging the correctness of this ruling on demurrer, would not require the judgment to be reversed. Telegraph Co. v. Evans, 1 Tex. Civ. App. 297, 21 S. W. 266; Telegraph Co. v. Carter, 2 Tex. Civ. App. 624, 21 S. W. 689.

2. The exception to so much of said petition as charged the reasonable prospect of deceased for promotion in the railway service, and the consequent enhancement of wages, was properly overruled; that being a matter for the consideration of the jury, in estimating the damages.

3. After the deposition of the freight clerk, mentioned above, had been read in behalf of appellees, without objection, down to and including the answer to ninth interrogatory, which answer disclosed that he had had no experience on railroads or in running trains, appellant moved to exclude the sixth interrogatory and answer, reading: "What caused said locomotive and cars to be derailed? State fully." "The inferior condition of the ties, and the spreading of the...