Houston & T. C. R. Co. v. White

• Decision Date: 14 March 1900
• Citation: 56 S.W. 204
• Parties: HOUSTON & T. C. R. CO. v. WHITE et ux.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

56 S.W. 204

HOUSTON & T. C. R. CO. v. WHITE et ux.¹

Court of Civil Appeals of Texas.

March 14, 1900.

Appeal from district court, Waller county; Wells Thompson, Judge.

Action by James White and wife against the Houston & Texas Central Railroad Company for the death of their son. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Frank Andrews and Searcy & Garrett, for appellant. Baldwin & Meek, for appellees.

NEILL, J.

This suit was brought in the district court of Waller county to recover damages against defendant by reason of the alleged negligent killing of their son John. Defendant pleaded general denial, special pleas of contributory negligence, negligence of fellow servant, and assumed risk. The case was tried before a jury, and the trial resulted in a verdict in favor of plaintiffs for $3,600, $1,200 of which was apportioned to deceased's father, and the remaining $2,400 to his mother. This is the second appeal in this case, a former appeal having been decided by the court of civil appeals at Galveston, whose opinion is reported in 46 S. W. 382.

Conclusions of Fact.

On the 10th of April, 1896, John White was one of appellant's switching crew, employed in its yard in Houston, of which crew J. B. Se Belle was foreman and appellant's vice principal. At that time the crew, under direction and control of Se Belle, was endeavoring to replace a derailed car upon the track which lay parallel with a long platform, and so close to it that a man could not, without being injured, stand between the platform and a car on the track. The derailed car was the rear one of a train of 15 or 20, and while White was under it, on the side next the platform, for the purpose of placing a piece of iron in position so that the car might be pulled on the track by the engine at the other end of the train, a signal was negligently given by Se Belle to the engineer to "pull up." In obedience to the signal the train was moved, and the derailed car pulled across the track towards the platform; and White, without any negligence on his part, was caught and pinioned between it and the car, and thereby seriously injured. It was the duty of the engineer to act only on the signals communicated by or through Se Belle. On this occasion the latter, not being in a position where he could direct and watch the progress of the crew's work, and at the same time directly communicate in person signals to the engineer, gave them to the fireman on the engine, who conveyed them to the engineer; the fireman being simply the medium through which the signals from Se Belle to the engineer were transmitted. Before signaling the engineer to move the train, it was the duty of Se Belle to notify the members of the crew in time for them to get from under the car into a place of safety before the train was moved. This duty the foreman negligently failed to discharge to White, and by reason of such negligence he was, without any negligence on his part contributing to his injury, caught and pinioned between the platform and the derailed car as before stated. When White was thus fastened between the car and platform, Se Belle negligently caused the engineer to back the train; and, in backing it before White was extricated, he was, as is shown from the evidence, further injured. White died from the said injuries inflicted as above stated by the negligence of appellant, the evidence being sufficient to show that the last injury caused his death. The appellees are the father and mother of the deceased, and, in killing John White, the appellant damaged his father in the sum of $1,200, and his mother in the sum of $2,400.

Conclusions of Law.

1. Our conclusions of fact dispose of the assignment of error which complains of the insufficiency of the evidence to support the verdict, as well as the one which urges that it is excessive, adversely to appellant.

2. The court did not err in instructing the jury, in case they should find for plaintiffs, to find for each of them such damages as the jury might think proportionate to the pecuniary loss resulting to them from the death of their son. We understand that the measure of damages in cases of this character is the pecuniary loss actually sustained by the parents of the deceased. What this pecuniary loss is, must be determined by the jury. In estimating it, they should consider what the deceased earned, what proportion of his wages he contributed to the support and maintenance of his parents, what would probably have been his earnings, and what would he have contributed to their support and maintenance in the future, and for what period of time. The respective ages of the parents, and the probable time each would have been benefited by the earnings of the deceased, should also be considered, in determining the pecuniary loss sustained by them in the death of their son. All these matters the court instructed the jury they might consider, in estimating the damages, and we do not think it erred in so doing. Railway Co. v. Lester, 75 Tex. 56, 12 S. W. 955; Railway Co. v. Henry, 75 Tex. 220, 12 S. W. 828.

3. There is no conflict between the fifteenth paragraph of the charge and special charge No. 8 given at the request of appellant's counsel. The matters the court, in the eighth paragraph of the charge, told the jury were the basis of estimating the damages, were not given as elements of damages, but merely as matters to be considered in estimating them. If the jury could have possibly understood the charge as allowing them to consider such circumstances as elements of damage, they were clearly relieved of such misconception by the special charge referred to. It, like the general charge, makes the pecuniary loss sustained by appellees the measure of damages, and directs the jury to consider nothing as an element of damages "except the pecuniary interest or the money value which plaintiff had, if any, in the life of the deceased by reason of contributions, if any, made by him to them."

4. The court did not err in permitting a witness to testify, over the objection that it was hearsay, that John White, a short time prior to his death, told his mother he wished her to quit keeping boarders, and did not want her to work any more; that she was getting too old to work; and that he would support and take care of her the balance of her life. This testimony was evidence of John's desire and intention to maintain and take care of his mother as long as he lived, and, in connection with other evidence, shows that she had a good reason to expect aid of pecuniary value from him. Such testimony is not hearsay, but original evidence, expressive of a son's affection for his mother, and of his intention to manifest it by contributing pecuniarily to her support and maintenance.

5. The record does not sustain appellant's thirty-first assignment of error. No objection was made to the testimony of Louisa White, and the only part of James White's testimony complained of in the bill of exceptions was that in reference to his impecunious condition. In suits by parents for damages accruing from the death of an adult son, proof of their pecuniary condition is admissible. Railroad Co. v. Kindred, 57 Tex. 498; Railway Co. v. Bonnet (Tex. Civ. App.) 38 S. W. 815; Railroad Co. v. Knight (Tex. Civ. App.) 52 S. W. 640. Only such objections as the bill of exceptions shows were presented in the trial court will be considered on appeal. Wheeler v. Railway Co., 91 Tex. 359, 43 S. W. 876.

6. The court did not err in permitting J. N. Harris to testify, over the objections of appellant, "that he was acquainted with the duties of foremen and switchmen in the yards of its road in Houston, and familiar with their duties in regard to giving signals, and the work and responsibility of each, and with the rules and customs prevailing in regard thereto, and particularly in regard to placing derailed cars on the track, and that it was the duty of the foreman, in all cases of replacing derailed cars, to first see and know that everything is ready and everybody out of the way before any signal should be given to pull on the car; that he could not delegate the right to give a signal to any switchman, nor rely upon the statement made by the switchman to him that all was ready to make the pull, but that it was necessary for him personally to see and know that all was ready, and everybody out of the way." The witness not only showed that he was competent, as an expert, to testify to such facts, but testified to them from his own personal knowledge of their existence. As to whether he possessed such knowledge, was a question for the jury.

7. We do not think that appellant can be heard to complain of the introduction in evidence of the petition for divorce, wherein John White was plaintiff, and his wife, Bettie, defendant, filed in the district court of Harris county on March 11, 1895. When it was offered in evidence, appellees' counsel stated that it was offered as a circumstance to show that John's wife had no interest in the recovery. After it was offered, counsel for both parties notified the court that it was mutually agreed that the widow of the deceased had no interest in the suit, and was not a necessary party. One of the attorneys for appellees then notified one of appellant's counsel, who was conducting the trial, that he did not care for the petition to remain in evidence, and that, unless he (appellant's counsel) desired it to remain, he would ask the court to withdraw it and instruct the jury not to consider it, whereupon appellant's attorney remarked, "Oh, let it remain." Upon the attorney stating that he had no recollection of such statement, appellees' counsel informed the court what he had stated to appellant's attorney, and asked the court, unless appellant's attorney wanted it to remain in the record, to withdraw the petition for divorce from the consideration of the jury, and instruct them not to consider it for any purpose. The...