Houston & T. C. R'Y Co. v. Cowser

• Decision Date: 01 July 1881
• Docket Number: Case No. 4452.
• Citation: 57 Tex. 293
• Parties: HOUSTON & T. C. R'Y CO. v. W. R. COWSER AND WIFE.
• Court: Texas Supreme Court

57 Tex. 293

HOUSTON & T. C. R'Y CO.

v.W. R. COWSER AND WIFE.

Case No. 4452.¹

Supreme Court of Texas.

Jul. 23, 1881.

ERROR from Robertson. Tried below before the Hon. W. E. Collard.

Suit brought July 26, 1880, by the defendants in error, Wm. R. Cowser and wife, against the Houston & Texas Central Railway Company, to recover damages resulting to them as the parents of Wm. R. Cowser, Jr., on account of his death, which, it is alleged, occurred in Hearne, the 12th June, 1880, and was caused by the gross negligence and carelessness of the agents, servants and employees of the railway company, in switching their cars. The evidence showed that Wm. R. Cowser was over twenty-one years old at the time of his injury and death. Plaintiff in error answered by general demurrer, plea of not guilty, and plea of contributory negligence.

Demurrer to the petition was heard and sustained as to second count, claiming exemplary damages, and overruled as to the first count, in which actual damages only are claimed.

The verdict of the jury was for plaintiffs below for nine thousand dollars ($9,000), and judgment rendered thereon.

Motion for a new trial was overruled, and notice of appeal given. The appeal was not perfected, but the petition for writ of error was filed, together with the bond; and the case brought up to this court by writ of error.

The evidence showed that Hearne was the end of the division, and that a great deal of switching had to be done there; that there are nine switches in the yard, about eight feet apart, and that the flat-car on which deceased was standing at the time of the accident was on the west outside switch near its north end; that the afternoon deceased was killed, the yard-master was engaged in switching; that he threw two box-cars on the same track where deceased, with two other men, were working, unloading lumber from a flat-car, and rode them down himself and set the brakes; that at that time deceased was standing on the ground near the lumber car, and he called to deceased and asked him to set the brake on the lumber car, and that deceased ordered John Burnell to set the brake, and he did so. That he then let the two box-cars go down and strike the lumber car. That he then ran up and threw one car in on another track, and then cut two box-cars loose and ran them in by themselves on the same track where the two box-cars and the lumber car previously mentioned stood. That when backing down to couple other cars he was informed by the brakeman that they had run over a man; that he signalled the engine to stop and ran to where the man was killed; that he recognized the injured man as Wm. R. Cowser. The yard-master did not see deceased fall from the car. When he last saw him, about two minutes before the accident, he was on the ground. The box-cars switched in were cut loose above the north end of the switch and ran down thirty-six steps to where they struck. The flat car was moved about six feet-- ascertained by measurement afterward,--and one wheel passed over body of deceased, and that was the front wheel of the box-car next to the flat-car. At the time of the accident there were two other men on the lumber car. The deceased was standing near the rear end of the car, about two feet from the end, with his back towards the cars that were being switched in, and when the car was struck he fell between the cars. The other two men did not fall.

As to the manner of switching and the velocity of the cars, witnesses differed somewhat. John Burnell, who was on the car assisting in unloading the lumber at the time of the accident, testified: That the two last cars switched in were cut loose from the engine and came in on a running switch. These cars were thrown in immediately before deceased was killed, and they came in tolerably fast. There was no one standing upon them or controlling them when they came in. They were stopped by hitting against two box-cars, already on the track, and they struck with sufficient force to drive them against the flat-car on which, at the time, deceased was standing, and the concussion was so great as to cause deceased to fall off backward between the flat car and the box-car next to it, when the said last car ran over his body and killed him. This witness heard no bell ringing or signal given while the switching was going on.

Dave Young, the other witness who was on the flat-car with the deceased, assisting in unloading lumber at the time of the accident, testified substantially as above in relation to the switching and signals.

J. L. Pannell testified: That he had been a railroad man eleven years, and for seven years of that time had been yard-master. That the usual and customary way of switching in a yard, where cars have to be switched on different tracks, is to cut loose the cars and let them run down lightly, and, if going too fast, somebody checks them. That the box-cars he put in were not put on at a running switch. In making a running or flying switch, the engine is headed toward the switch, and, when near it, the cars are cut loose from the rear, the engine run upon the main-track, and then the switch is suddenly changed so as to run the cars that have been cut loose off on the side-track. That at the time of this accident the cars were backed down and cut loose and run on the side-track, while the engine was drawn off the other way. That he cut loose the cars, and they moved on the side-track slowly. Witness did not remember whether the bell was ringing on the engine or not, but it is usual to ring the bell when making switches or going over crossings. This witness made a diagram of the tracks where the accident occurred, showing eight switches in the yard, and the one where deceased was killed being the most westerly from depot.

John Henry, the engineer, testified, substantially, that he was the engineer in charge of the train and doing the switching at the time of the accident. That he had been an engineer about six years. That the last two box-cars thrown in on the side-track where Cowser was killed were in the rear of the train, and were backed down near to the junction of the switch with the other track. When near the switch they were uncoupled from the train and allowed to run in upon the switch, while the engine pulled off in the opposite direction. There was nothing unusual in the way these cars were put on the side-track. Did not see the deceased at the time he was killed, and did not know that he was on the flat-car. Witness was positive that the bell was ringing at the time.

Ben Tucker (fireman) testified: That he was the fireman on the engine engaged in switching at the time. That he was positive the bell was ringing at the time the two last box-cars were thrown in on the side-track that the flat-car stood on. That he himself was ringing it when the accident occurred.

Harry Woodruff, at the time in the employ of the defendant company and the I. & G. N. R. R. Co. also, testified that he heard the bell ringing at the time of the accident. That he was at Bailey's store, about one hundred or one hundred and fifty yards distant, and just after it occurred some one questioned if the bell was ringing, and he then knew it was--that he heard it.

The plaintiffs alleged in their petition that the defendant's carelessness caused the death of their son without any fault or negligence on his part while switching their cars.

At the time of his death, deceased had control of the lumber business of Griffiths & Cowser, at Hearne. Two-thirds of deceased's earnings went to the support of his parents and their minor child. Deceased left no wife or children. That for four or five years previous to his death, deceased had given his parents all the assistance he could. That for two years before he went to Hearne he had worked for his father and assisted in supporting the family and helped to raise cotton; that deceased was possessed of good moral habits. He had gone to school at Tehuacana; that he graduated in book-keeping; that he was quick at figures, and very steady, and never drank. Smith says deceased was a good business man, had a very good education. Drennan says deceased had a liberal education; that he was educated at Tehuanaca; that he had good energetic business habits.

Beall & Kemp, for plaintiff in error.

I. The law confers upon parents no right to require the services of an adult son, and it being shown in the petition, and by the evidence, that the plaintiffs' son was more than twenty-one years of age at the time of his death, and not living with his parents, the defendant was not liable in this action. H. & T. C. R. R. Co. v. Nixon, 52 Tex., 19; I. & G. N. R. R. Co. v. Miller, 49 Tex., 322; Wood on Master and Servant, secs. 14-224; Field on Damages, § 640 and notes; Oakland R. R. Co. v. Fielding, 48 Pa., 320; Pa. R. R. Co. v. Zebe, 33 Pa. St., 318; Peck v. Mayor of New York, 3 Comst., 489;Potter v. Chicago R. R. Co., 21 Wis., 372;Ford v. Monroe, 20 Wend., 210; Penn. R. Co. v. Banton, 54 Pa. St., 495.

II. The court erred in the fifth section of the charge, to the effect that if the said Cowser was on the flat-car by permission of the defendants, or under any contract or agreement with them attending the unloading of the cars, then that he had a right to be on the car for that purpose; because there was no evidence to support the issue as to any contract or agreement between the defendant company and said Cowser, and said charge was calculated to mislead the jury. Walker v. Herron, 22 Tex., 56; Railroad Co. v. Murphy, 46 Tex., 357; 2 Greenl. Ev., § 473; Allyn v. Boston & Albany R. R. Co., 105 Mass., 77; Gleeson v. Breeman, 50 Me., 222, 224; Bush v. Davenport, 6 Iowa, 443;Way v. Ill. R. R. Co., 40 Iowa, 341;Kepperly v. Ramsden, 83 Ill., 354; Beers v. Housatonic R. Co., 19 Conn., 556;Vicksburg v. Hennesy, 54 Miss., 391;Detroit R. Co. v. Steinburg, 17 Mich., 99;Evansville R. R. Co. v. Dexter, 24 Ind., 411.

III. The court should have granted the...