International & G. N. R. Co. v. White

• Decision Date: 26 May 1909
• Citation: 120 S.W. 958
• Parties: INTERNATIONAL & G. N. R. CO. v. WHITE et al.
• Court: Texas Court of Appeals

120 S.W. 958

INTERNATIONAL & G. N. R. CO. v. WHITE et al.

Court of Civil Appeals of Texas.

May 26, 1909.

Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.

Action by Mrs. Annie M. White and others against the International & Great Northern Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

S. R. Fisher, J. H. Tallichet, S. W. Fisher, and King & Morris, for appellant. J. B. Rector and James H. Robertson, for appellees.

KEY, J.

This is a suit for damages alleged to have been caused by the wrongful killing of Bertie White. The plaintiffs are the surviving wife, children, and mother. Bertie White was a switchman in the defendant's yard at Austin, Tex., and while standing on the running board upon the top of a box car, which was being moved by a switch engine, the car was derailed, and he was thrown or fell therefrom, and was caught under a wheel of the car and killed. The plaintiffs charged in their petition that the defendant was guilty of negligence (1) in moving the train of cars at a high and unlawful rate of speed, and (2) in negligently constructing and maintaining its switch track upon which the derailment occurred. The defendant's answer embraced a general demurrer and special exceptions, a general denial, and special plea of assumed risk. There was a jury trial which resulted in a verdict and judgment for the plaintiffs for $25,000, apportioned among them as follows: To the surviving wife, $7,000; to each of the surviving children, $8,000; and to the surviving mother, $2,000. The defendant's motion for new trial having been overruled, it has appealed, and submits the case in this court on numerous assignments of error.

Some of the assignments, and especially the 21st, 28th, and 30th, are attempted to be submitted in appellant's brief as propositions, while they each contain more than one proposition, and are not followed up by appropriate propositions, as required by the rules, and for that reason have not been considered by this court. Carmmack v. Rogers, 96 Tex. 457, 73 S. W. 795; Freeman v. Puckett (decided by this court two weeks ago) 120 S. W. 514.

In many respects this case is quite similar to many other cases of the same class which have been decided and affirmed by this and other appellate courts in this state. It is urgently insisted that the testimony fails to show negligence on the part of appellant; and while in that respect the plaintiffs' case is not as strong as many others, still we find testimony in the record which supports the verdict of the jury upon both grounds of negligence, and we overrule the various assignments to the verdict, and hold that the latter is supported upon all the issues submitted to the jury, including the amount of damages awarded to the respective plaintiffs. The verdict is large, but we cannot say that it is excessive.

Many assignments are addressed to the charge of the court, only three of which will be discussed in this opinion, as follows: Appellant submitted testimony tending to show that the derailment was caused by a rock that witnesses claimed to have found on one of the rails of the track at or near where the car left the track, and upon that subject the court instructed the jury as follows: "(11) You are further instructed that if you believe from the evidence that the derailment of defendant's car and the death of Bertie White was caused directly and proximately by the presence of a rock on the north rail of a curve in its track at the crossing of Fourth and Guadalupe streets, and if you further believe from the evidence that the presence of the rock on the rail (if it was so present) was not due to negligence (if any) on the part of the defendant in the respects alleged by the plaintiffs and submitted in this charge, then you will find for the defendant." And the court declined to give the following instruction requested by appellant: "You are instructed that if you believe from the evidence that the derailment of defendant's car and the death of Bertie White was caused directly and proximately by the presence of a rock on the north rail of the curve in its track at the crossing of Fourth and Guadalupe streets, then your verdict must be for the defendant." The giving of the one and the refusal of the other instruction are assigned as error. It is contended on behalf of appellant, and such contention is true, that appellees did not specifically charge in their petition that the derailment was caused by a rock on one of the rails, and that the defendant was guilty of negligence in permitting the rock to be there; and therefore it is contended that no right of recovery can be based upon a derailment caused by the presence of the rock on the rail, although the defendant may have been negligent in permitting it to be there. It is true, as a general rule, that a plaintiff cannot recover damages on account of negligent acts there are not pleaded, but we do not consider...