Houston & T. C. Ry. Co. v. Boozer

• Decision Date: 20 April 1888
• Citation: 8 S.W. 119
• Parties: HOUSTON & T. C. RY. CO. v. BOOZER.
• Court: Texas Supreme Court

8 S.W. 119

HOUSTON & T. C. RY. CO. v. BOOZER.

Supreme Court of Texas.

April 20, 1888.

Appeal from district court, Grayson county.

Action by John H. Boozer, a minor, by his next friend, against the Houston & Texas Central Railway Company, for negligently injuring plaintiff. Defendant appeals.

R. De Armond, for appellant. W. W. Wilkins and Woods & Cunningham, for appellee.

STAYTON, C. J.

This action was brought by appellee, through his next friend, to recover damages for an injury alleged to have been caused by the negligence of the employes of the appellant. At the time of the injury, the appellee was a child in his tenth year, and he was injured while attempting to cross the railway track. The first assignment of error is as follows: "The court erred in the fifth paragraph of its charge to the jury, wherein it is stated by the court to the jury that, in estimating the amount of damages that plaintiff might recover, the jury might consider plaintiff's diminished capacity, if any, to labor and earn a livelihood; for the following reason: The plaintiff is a minor. The evidence shows that he was living with his mother at the time of the injury, and still is. She is therefore entitled to his earnings during minority. That his father is dead, and that his mother has now a suit pending against defendant for damages occasioned plaintiff from the same accident." The part of the charge complained of, considered with relation to an adult seeking to recover for an injury to himself, would be strictly correct, but in the case in which it was given the court should have limited the liability for damages resulting from diminished capacity to labor, caused by the injury, to the period after the appellee's majority; for until that period was reached the appellee would not be entitled to the proceeds of his own labor, and would not be entitled to damages on account of his diminished capacity. We are of the opinion, however, that we would not be authorized to reverse the judgment on account of this charge, even if it was not the duty of the appellant to have asked a proper charge in this respect, for there is no complaint made that the verdict of the jury was excessive. The only effect the charge could have had would have been to cause an excessive verdict, and it in no way had a bearing on the question whether the appellant was liable at all under the facts.

The controversy in the lower court, and here, is as to whether, under the facts, the appellant is liable at all. The appellee was injured while attempting to cross the track at a path leading from the...