E. Line & Red River R'Y Co. v. Smith

• Decision Date: 03 November 1885
• Docket Number: Case No. 1891
• Citation: 65 Tex. 167
• Parties: EAST LINE AND RED RIVER R'Y CO. v. D. P. SMITH, ADMR.
• Court: Texas Supreme Court

65 Tex. 167

EAST LINE AND RED RIVER R'Y CO.

v.D. P. SMITH, ADMR.

Case No. 1891

Supreme Court of Texas.

Nov. 3, 1885.

APPEAL from Camp. Tried below before the Hon. B. F. Estes.

This suit was instituted by D. P. Smith, as administrator of L. N. Tetro, deceased, to recover of the East Line and Red River R'y Co. damages, both actual and exemplary, for the wrongful death of Tetro, which it is alleged was brought about by the negligence of the defendant company as follows: That Tetro was on August 7, 1882, a passenger on one of its trains, and on that day, at Scroggin's switch, in Wood county, Texas, the train was wrecked and Tetro killed; that the wreck was caused, first, by defendant company's agents negligently putting into the train two large and dangerous box-cars which had been built for the Missouri Pacific railway, a road of the gauge of four feet eight inches, whereas defendant's railway track was of the gauge of three feet, and for which the cars were suited; that the cars were not supplied with center castings and side bearings and safety chains; that the cars were unfit and dangerous to be run on defendant's track, which was weak and frail and of light iron and ties, which were in bad repair, and that at the place of the wreck there was a low joint. Second, that the train was not provided with a bell rope. Third, that the train was not provided with a sufficient number of competent and efficient operators. Fourth, that the brakeman and engineer were unskilled and incompetent, and that they failed to stop the train after it left the track. It is also alleged that the train, made up as aforesaid, was run at an unsafe speed at the time and place of the wreck.

The plaintiff alleges that Tetro was a stone-cutter and about twenty-nine years of age; that the beneficiaries in the suit were the wife, daughter, and father and mother of Tetro, to whose support he contributed.

Defendant answers and says the cars used in the train were suitable and safe; that they were properly constructed; that all the cars and machinery of the train were safe and secure; that the same was run at a proper rate of speed; that the road-bed and track were in good repair, and that the wreck was the result of inevitable accident.

Defendant further says that there was attached to the train a car which was provided for carrying passengers; that plaintiff, instead of occupying this car, went into the baggage car and occupied a seat in it near a large open door; that the baggage car was not a safe place for passengers, and that plaintiff's intestate, by his acts, was guilty of negligence and contributed to his death.

A trial resulted in a judgment for plaintiff for $20,000, of which $15,000 was actual and $5,000 exemplary damages. The exemplary damages were remitted.

Among other things, the court charged the jury: “In estimating the amount of actual damages you will take into consideration only the probable pecuniary loss suffered by the beneficiaries on account of the death of said Tetro; in estimating the same you can consider the age and probable continuance of life of Tetro, and probable amount of money the parties would have received from his services had he not been killed.”

Whitaker & Bonner, for appellant, on the charge of the court, cited.

R. S., art. 1317; T. & P. R'y v. Murphy, 46 Tex., 356.

On contributory negligence, they cited: Smithwick v. Andrews, 24 Tex., 488; H. & T. R'y v. Clemons, 55 Tex., 88;Rucker v. Mo. Pac. R'y 61 Tex., 502.

W. J. Singleton and Culberson & Culberson, for appellee, on the charge of the court, cited: R. R. Co. v. Evansick, 61 Tex.; R. R. Co. v. Tankersley, 63 Tex., 3, 24;Armstrong v. Lipscomb, 11 Tex., 649;Hollingsworth v. Holshousen, 17 Tex., 41;Kaise v. Lawson, 38 Tex., 160; R. R. Co. v. Dillahunty, 53 Tex., 212;Houston county v. Dwyer, 59 Tex., 113.

On contributory negligence, they cited: R. R. Co. v. Clemmons, 5 Tex. Law Rev., 625; Prince v. R. R. Co., 5 Tex. Law Rev., 303; Jacobus v. R. R. Co., 20 Minn., 125;Sherman v. R. R. Co. 72 Mo., 62;Burns v. R. R. Co., 50 Mo., 139;O'Donnell v. R. R. Co., 59 Pa., 250;Clark v. R. R. Co., 36 N. Y., 135; R. R. Co. v. Gorbett, 49 Tex., 580; R. R. Co. v. Robinson, 5 Tex. Law Rev., 590; R. R. Co. v. Ormand, Tyler term, 1885.

On the question of excessive damages, they cited: 3 Gra. & Wat. New Trials, 1128, 1135, 1139; Yates v. Miller, 23 Ind., 562; Ward v. Bledsoe, 32 Tex., 251; R. R. Co. v. Randall, 50 Tex., 254; R. R. Co. v. Kindred, 57 Tex., 491; R. R. Co. v. Boehen, 57 Tex., 155; R. R. Co. v. Ormand, 62 Tex., 274; Funston v. R. R. Co., 14 Am. and Eng. R. R. Cases, 640; R. R. Co. v. Moore, 15 Am. and Eng. R. R. Cases, 312; Berg v. R. R. Co., 50 Wis., 419; R. R. Co. v. McDaniels, 107 U. S., 454;Rockwell v. R. R. Co., 64 Barb., 438;Caldwell v. Steamboat Co., 47 N. Y., 282;Shaw v. R. R. Co., 8 Gray (Mass.), 45; R. R. Co. v. O'Donnell, 58 Tex., 27; R. R. Co. v. Randall, 50 Tex., 254; R. R. Co. v. Ormand, Tyler Term, 1885; R. R. Co. v. Kirk, 62 Tex., 227;Whalen v. R. R. Co., 60 Mo., 323; R. R. Co. v. Hardin, 62 Tex., 367;Farish v. Reigle, 11 Gratt. (Va.), 697; R. R. Co. v. Boring, 51 Ga., 582;Boyce v. Stoge Co., 25 Cal., 460;Walker v. Erie R'y Co., 63 Barb., 260.

STAYTON, ASSOCIATE JUSTICE.

The petition alleged many acts of negligence of the railroad company to fix its liability for the injury which resulted from the death of Louis N. Tetro. The averments in regard to the defects in and unsuitableness of the cars called “broadgauge cars,” the use of which in the train was alleged to be negligence, were very full. There was evidence tending to sustain the averments in reference to the negligent use of these cars, and it shows that one of them was the first derailed, and that thereby the track was broken and the two following cars thrown therefrom. In one of the last named cars was the deceased, who was killed in the accident. There was also evidence of the unsound condition of the track.

The case thus standing, one of the paragraphs of the charge given by the court was: “If the said Tetro went upon the defendant's cars as a passenger, and upon the train, and the same was wrecked, and the said Tetro was killed in the wreck, and if the evidence shows that the wreck was brought about and occasioned by the bad and defective condition of defendant's railroad track, or by placing of broad-gauge cars into the train in which Tetro was, or by dangerous condition of the cars, or on account of the want of sufficient number of suitable train-men, or by the want of proper machinery and appliances for the cars in the train, all as alleged, or if the train was wrecked by any or all the causes combined, and if the defendant knew of the cause and defects which produced the wreck, or might have known them by the exercise of care, diligence and caution on its part, and it is not shown that Tetro brought about his own death by his own negligence, as averred by defendant, then the defendant is liable to plaintiff in actual damages.”

The giving of this charge is assigned as error, and the sole ground on which it is claimed that it was erroneous is that thereby the court in effect charged the jury that the placing of broad-gauge cars in the train was negligence, and that this was a violation of the rule which forbids a judge to charge upon the weight of evidence. The court in preceding parts of the charge, and in fact throughout the charge, informed the jury that the right of the plaintiff to recover depended upon whether the negligence of the defendant caused the injury.

The charge must be taken as a whole in order to determine whether or not it was erroneous or misleading, and it must be construed in the light of the issues made by the pleadings and evidence. In this case the pleadings set out very fully the acts and facts which were alleged to constitute negligence in the defendant, and in relation to the liability arising from the use of the ““broad-gauge” cars. Did the charge do more than inform the jury that if the wreck was caused by the use of the cars having such known defects as were charged in the petition, then their use would constitute such negligence as would entitle the plaintiff to recover?

If the facts stated in the...