International & G. N. Ry. Co. v. Butcher

• Decision Date: 20 February 1905
• Citation: 84 S.W. 1052
• Parties: INTERNATIONAL & G. N. RY. CO. v. BUTCHER.
• Court: Texas Supreme Court

84 S.W. 1052

INTERNATIONAL & G. N. RY. CO. v. BUTCHER.

Supreme Court of Texas.

February 20, 1905.

Error from Court of Civil Appeals, First Supreme Judicial District.

Action by E. D. Butcher against the International & Great Northern Railway Company. From a judgment in favor of plaintiff, affirmed by the Court of Civil Appeals (81 S. W. 819), defendant brings error. Reversed.

J. A. Read, for plaintiff in error. Brockman & Kahn and Wilson & Jackson, for defendant in error.

BROWN, J.

The honorable Court of Civil Appeals made the following findings of fact: "On September 30, 1902, while appellee. Ernest D. Butcher, a minor 16 years old, was driving a buggy along Preston street, a public thoroughfare of the city of Houston, which is crossed diagonally by appellant's railroad, where it maintains a number of tracks, switches, frogs, and guard rails, the wheel of his buggy caught in a guard rail or wing of a frog on one of the railroad tracks, by reason of the negligence of appellant either in constructing or maintaining the guard rail or frog, and as the direct and proximate cause of said negligence appellee was thrown from the buggy and seriously and permanently injured, without any negligence on his part contributing thereto, to his damage in the amount found by the jury." The trial court gave to the jury the following as a part of its charge: "If you find for the plaintiff, you will assess the damages at such sum as in your sound judgment, from all the evidence, will fairly compensate Ernest Butcher for the physical and mental suffering, if any, which he has endured, and which he will likely endure in the future, and the probable effect, if any, of the alleged injuries in the future upon his health, either mental or physical, and any impairment of his ability or capacity to pursue, after he is 21 years of age, the course of life he might have done but for the alleged injuries, if any, and for his probable decreased mental and physical capacity, if any, to labor and earn money after he reaches the age of 21 years." The jury returned a verdict for the plaintiff in the sum of $7,000, upon which the trial court entered a judgment, which was affirmed by the Court of Civil Appeals.

Error is assigned upon the above paragraph of the court's charge, with this proposition: "It was error to instruct the jury as shown, because the same was calculated to confuse and mislead the jury into assessing double damages, and more damages than the law allows, and...