Houston & Tex. Cent. R.R. Co. v. Nixon

• Citation: 52 Tex. 19
• Parties: HOUSTON AND TEXAS CENTRAL RAILROAD CO. v. J. R. NIXON AND WIFE.
• Decision Date: 21 October 1879
• Court: Texas Supreme Court

52 Tex. 19

HOUSTON AND TEXAS CENTRAL RAILROAD CO.

v.J. R. NIXON AND WIFE.

Supreme Court of Texas.

Oct. 21, 1879.

APPEAL from Travis. Tried below before the Hon. E. B. Turner.

March 14, 1877, J. R. Nixon and his wife Lizzie brought suit in the District Court of Travis county against the Houston and Texas Central Railroad Company for damages for negligently causing the death of their infant son, Willie Nixon, March 7, 1877. The defendant pleaded a general denial and contributory negligence. There was no question made upon the pleadings. A verdict was rendered for plaintiffs, and the defendant appealed. The facts sufficiently appear in the opinion.

George Goldthwaite, for appellant.

I. The court erred in charging that the jury are authorized to determine, in the absence of any proof, for themselves, what the extent of the pecuniary damage is; and it should, on this question, have given the second charge asked by defendant, embodying the law applicable to the case, and the third instruction asked by defendant, as to the proper rule for estimating damages, instead of leaving the jury without any rule on the subject. There is no evidence to support the verdict on the question of damages.

II. The jury are not authorized to determine for themselves what the extent of the pecuniary damage is, without evidence upon the subject, and the court erred in so charging and in refusing to give the second charge prayed for by defendant.

The court charged: “The extent of the recovery allowed in such case is the actual damages sustained by the plaintiffs in consequence of loss of services of such child, and the jury are authorized to determine for themselves what the extent of the pecuniary damage is.” It refused to give the second charge prayed for by defendant, viz.: “The recovery of the plaintiffs is to be measured by the evidence of pecuniary loss; and unless plaintiffs have proved by evidence before you pecuniary injury or actual damage in some tangible form, then you will find for defendant.” (Duckworth v. Johnson, 4 Hurl. & Nor., 653; Mitchell v. Railway Co., 5 Thomps. & C., (N. Y.,) 122.)

The third charge prayed for by defendant, and refused by the court, gave the jury a correct rule for estimating the damages, if any, and should have been given. The defendant had the right to have the jury instructed upon the law of the case clearly and pointedly, so as to leave no ground for misapprehension or mistake. (Muldowney v. Railroad Co., 32 Iowa, 180; Field on Dam., p. 507; State of Maryland v. Railroad Co., 24 Md., 107;Ford v. Monroe, 20 Wend., 210; Railroad Co. v. Kelly, 31 Penn. St., 376; Same v. Zebe, 33 Penn. St., 327.)

III. The damages for the loss occasioned by the death of the child should have been limited to the period of minority. The court refused so to do, and refused the defendant's charge to that effect. (Shear. & Red. on Dam., sec. 608; Field on Dam., sec. 840; Sedg. on Dam., pp. 697, 698; State of Maryland v. Railroad Co., 24 Md., 84; Traver v. Railroad Co., 6 Abb., (N. S.,) 46.)

IV. To permit a child under five years of age to run at large and play in the streets of a city traversed by cars and other vehicles, is, in case of accident and injury to the child, contributory negligence, and the defendant was at least entitled to have that question clearly and pointedly submitted to the jury.

The child was under the age of five years. The accident happened at the culvert bridge at the intersection of Pine and Brazos streets, in Austin, about one hundred yards from where the parents reside. Three children were playing, or trying to get upon the car. They seemed to be on the steps, and hanging between the first and second cars. Two of the children fell through the bridge between the cross-ties. One of them was killed. (Railroad Co. v. Pearson, 72 Penn. St., 171; Glassey v. Railroad Co., 57 Id., 174; Smith v. O'Connor, 48 Id., 223; Railroad Co. v. Keller, 67 Id., 300; Railroad Co. v. Vining's Adm'r, 27 Ind., 513; Railroad Co. v. Huffman, 28 Id., 287; Railroad Co. v. Bowen, 40 Id., 545;Ihl v. Railroad Co., 47 N. Y., 317;Hartfield v. Roper, 21 Wend., 615; Kreig v. Wells, 1 E. D. Smith, (N. Y.,) 74; Mangam v. Railroad Co., 36 Barb., 230; Wright v. Railroad Co., 4 Allen, (Mass.,) 283; Holly v. Gaslight Co., 8 Gray, 123;Callahan v. Bean, 9 Allen, 401;Boland v. Railway Co., 36 Mo., 484; Singleton v. Railway Co., 7 C. B., (N. S.,) 287.)

Walton, Green & Hill, for appellees.

I. The jury, in a case of this character, have the right, acting on individual knowledge, independent of extraneous evidence, to say that the present and prospective services of a boy child are valuable to the parents, and to estimate the value thereof during minority. (O'Mara v. Hudson River Railroad Co., 38 N. Y., 450;Oldfield v. New York and Harlem Railroad Co., 14 N. Y., 319;Drew v. Sixth-avenue Railroad Co., 26 N. Y., 52; Ihl v. Forty-second-street and Grand-street Ferry Railroad Co., 7 Amer. R., 451; Id., 47 N. Y., 317.)

II. Appellant's fourth proposition may be abstract law, but it is wholly inapplicable to this case. The mother did not permit the child to go into danger.

The statement of the case gives the facts as to all the negligence of which the mother was guilty. (Ihl v. Forty-second-street and Grand-street Ferry Railroad Co., 7 Amer. R., 451; Id., 47 N. Y., 317; Cooley on Torts, 682, note 2, and authorities cited; Lynch v. Smith, 6 Amer. R., 189; McGary v. Loomis, 20 Id., 512, and authorities cited.)

III. A failure on the part of appellant to ring its bell while its train is moving along a public street and crossing a public street, is a failure to perform a statutory duty, and is negligence.

The evidence is conflicting as to whether the bell was ringing as the train was moving. (Wakefield v. Conn. and Pass. Railroad Co., 37 Vt., 334;Langhoff, Adm'r, v. Milwaukee and Prairie du Chien Railroad Co., 19 Wis., 496;Correll v. B. C. R. and M. Railroad Co., 38 Iowa, 123;Augusta and Savannah Railroad Co. v. McElmurry, 24 Ga., 79;Norton v. Eastern Railroad Co., 113 Mass., 367;Linfield v. Old Colony Railroad Corporation, 10 Cush., 566;St. Louis, Vandalia and Terre Haute Railroad Co. v. Dunn, 78 Ill., 200;Renwick v. New York Central Railroad Co., 36 N. Y., 132; Ernst v. Hudson River Railroad Co., 32 How., (N. Y.,) 80; O'Mara v. Hudson River Railroad Co., 38 N. Y., 447.)

BONNER, ASSOCIATE JUSTICE.

This is a suit for damages against the appellant, the Houston and Texas Central Railroad Company, brought by the appellees, J. R. Nixon and wife, for injuries from a moving train, which resulted in the death of their minor child, aged between four and five years.

The testimony showed that the deceased had strolled from the home of his parents, situated in the city of Austin, about one hundred yards from where the occurrence happened, and that before the train came up, he and two other children were playing under a culvert bridge on the railroad track at the intersection of Pine and Brazos streets; that the train backed slowly toward the culvert, and that about the time it reached it the deceased crawled out from between the ties and was caught and run over by the passing wheels. The testimony tends to show that one or more of the children were on the steps of the car, and that one of them ran off. There was no evidence of any definite pecuniary value, present or prospective, of the services of the child, and the testimony was conflicting whether the locomotive bell was ringing at the time.

There was a verdict and judgment for the plaintiffs for $825, from which the defendant appealed.

The material questions in the case arise upon the charge of the court and the charges asked by the defendant and refused.

The first error assigned is, that “the court erred in charging that the jury be authorized to determine, in the absence of any proof, for themselves, what the extent of the pecuniary damage is; and it should, on this question, have given the second charge asked by defendant embodying the law applicable to the case, and the third instruction asked by defendant, as to the proper rule for estimating damages, instead of leaving the jury without any rule on the subject; and there is no evidence to support the verdict on the question of damages.”

Among other propositions presented by the appellants are:

“1. There is no evidence to support the verdict on the question of damages.”

“2. The jury are not authorized to determine for themselves what the extent of the pecuniary damage is without evidence upon the subject, and the court erred in so charging and in refusing to give the second charge prayed for by defendant.”

The court charged the jury, that “the law gives a right of action to a parent whose child has been killed by the negligence of a railroad company in running its trains, but the extent of the recovery allowed in such cases is the actual damage sustained by the plaintiff in consequence of loss of service of such child, and the jury are authorized to determine for themselves what the extent of the pecuniary damage is.”

There is a conflict of authority upon the question whether, in this character of case, the jury can determine for themselves, in their own uncontrolled discretion, the amount of pecuniary compensation which the parents should recover.

As this case will be reversed, and as it may become an immaterial question on another trial, and as there is not entire unanimity in the views of the court, we do not now decide the question. (Potter v. Railroad Co., 21 Wis., 372;Oldfield v. Railroad Co., 14 N. Y., 310;O'Mara v. Railroad Co., 38 N. Y., 450; Pennsylvania Railroad Co. v. Kelley, 31 Penn. St., 372; Pennsylvania Railroad Co. v. Vandever, 36 Penn. St., 303, and as cited in note 1, p. 702, Shear. & Red. on Neg.; Chicago, &c., Railroad Co. v. Swett, 45 Ill., 197;Illinois Central Railroad Co. v. Welch, 52 Ill., 183;Green v. Hill, 4 Tex., 465; 2 Gra. & Wat. on New Trials, 347.)

Appellant submits as proposition 3: “The third charge...