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

• Decision Date: 21 June 1892
• Citation: 20 S.W. 80
• Parties: McGOWN v. INTERNATIONAL & G. N. R. CO.
• Court: Texas Supreme Court

20 S.W. 80

McGOWN v. INTERNATIONAL & G. N. R. CO.

Supreme Court of Texas.

June 21, 1892.

Commissioners' decision. Section B. Appeal from district court, Hays county; H. TEICHMUELLER, Judge.

Action by W. T. McGown against the International & Great Northern Railroad Company to recover damages compensatory and exemplary for injuries sustained by reason of the gross negligence of defendant's servant. Judgment for defendant. Plaintiff appeals. Affirmed.

S. B. McBride and O. T. Brown, for appellant. W. O. Hutchison and Thos. H. Franklin, for appellee.

TARLTON, J.

W. T. McGown, appellant, as the surviving husband of Susan M. McGown, instituted this suit against the appellee company in the district court of Hays county on December 13, 1888. Appellant sought to recover the sum of $20,000 as actual, and $20,000 as exemplary, damages for personal injuries received by his wife, resulting, as he alleges, in her death. The defendant's answer consisted of a general demurrer; general denial; a special plea that the injury, if any, was due, not to the negligence of the defendant, but to that of the sleeping car company, its agents or servants, in no way the agents or servants of the defendant; and, finally, a plea charging contributory negligence. The court sustained a special exception to the plea setting up the negligence of the sleeping car company, overruled the defendant's general demurrer, and on the trial, which occurred September 6, 1889, instructed the jury to return a verdict for the defendant, which was accordingly done.

We have only to consider this question: Was the court, under the facts, justified in instructing the jury "that the evidence is insufficient to sustain the material allegations in the plaintiff's petition, and that they should return a verdict in favor of the defendant?" To make out a case, it was incumbent on the plaintiff to establish, by a preponderance of evidence, (1) that the death of his wife was caused by the negligence of the defendant, its agents or servants; (2) that he was thereby actually damaged; or (3) that he was entitled to exemplary damages.

1. Was the death of Mrs. McGown due to the negligence of the defendant, its agents or servants? We find it unnecessary to detail the facts bearing on this question. It suffices to say that, while very meager, they were such as to have required a submission of the question to the jury if it alone had been involved.

2. If the death of the lady was due to the negligence of the defendant, was the plaintiff thereby actually damaged? The character of action here brought by the plaintiff is purely...