Missouri, K. & T. Ry. Co. v. Gilmore

• Decision Date: 13 May 1899
• Citation: 53 S.W. 61
• Court: Texas Court of Appeals
• Parties: MISSOURI, K. & T. RY. CO. v. GILMORE.<SMALL><SUP>1</SUP></SMALL>

53 S.W. 61

MISSOURI, K. & T. RY. CO. v. GILMORE.¹

Court of Civil Appeals of Texas.

May 13, 1899.

Appeal from district court, Dallas county; W. J. J. Smith, Judge.

Action by R. H. Gilmore against the Missouri, Kansas & Texas Railway Company. There was judgment for plaintiff, and defendant appeals. Affirmed.

Alexander, Clark & Thompson, for appellant. Thos. F. Nash, for appellee.

RAINEY, J.

This is an appeal from a judgment of $2,000 for appellee in an action against appellant predicated on the alleged negligence of defendant's servants in running a train over and killing appellee's minor son, aged 7 years. It was agreed by the parties to this suit that the evidence was sufficient to entitle plaintiff to recover, and the only questions to be presented on this appeal being excessiveness of the verdict, and the assumed error on the part of the court as complained of in defendant's assignment of errors relating to the court's charge.

The first error assigned complains that the verdict is excessive. The amount of damages in cases of this character is a question for determination by the jury, and, unless clearly excessive, the findings of the jury will not be disturbed. Our courts have sustained verdicts where the amounts were the same as, and in some instances considerably greater than, in this case. Railway Co. v. Cullen (Tex. Civ. App.) 30 S. W. 578; Railway Co. v. Sciacco (Tex. Sup.) 16 S. W. 31; Railway Co. v. Watzlavzick (Tex. Civ. App.) 28 S. W. 115; Railway Co. v. Warner (Tex. Civ. App.) 31 S. W. 66; Railway Co. v. Vaughn (Tex. Civ. App.) 23 S. W. 745; Ross v. Railway Co., 44 Fed. 44; Ahern v. Steele (Sup.) 1 N. Y. Supp. 259. We are of the opinion the assignment is not well taken.

The second assignment of error complains that the charge of the court, as follows: "`In estimating the value of such services, you will look to the habits of energy of the deceased, John Gilmore,' etc.,—was a palpable encroachment upon the province of the jury, in finding for the jury that the deceased possessed habits of energy, and in directing the attention of the jury to same, and requiring them to consider such fact. Further, the pleadings did not allege that deceased possessed habits of energy, and there was error in thus submitting a question not raised by the pleadings." The paragraph of the charge of the court referred to is as follows: "(6) If you find for plaintiffs, you will find for them such sum of money, if any, as you may find and believe from the evidence to be the pecuniary value to plaintiffs of the services of John Gilmore from the time of his death until he reached the age of 21 years, after deducting therefrom the cost of his maintenance for the same period of time. In estimating the value of said services, you will look to the habits of energy of...