S. Cotton Press & Mfg. Co. v. Bradley

• Decision Date: 17 February 1880
• Citation: 52 Tex. 587
• Parties: SOUTHERN COTTON PRESS AND MANUFACTURING CO. v. JAMES R. BRADLEY.
• Court: Texas Supreme Court

52 Tex. 587

SOUTHERN COTTON PRESS AND MANUFACTURING CO.

v.JAMES R. BRADLEY.

Supreme Court of Texas.

Feb. 17, 1880.

APPEAL from Galveston. Tried below before the Hon. William H. Stewart.

In this case, the counsel having failed to agree upon a statement of facts, the presiding judge certified to eighty-two pages of questions propounded to witnesses on the stand and their answers thereto, preserved by a stenographer, as the statement of facts. When no fact could be certified to, sufficiently established by evidence, as required by rule 71, to obviate incorporating in the record such detail of proceedings, the embarrassment of reporting this case will be readily understood; for a like detail of proceedings cannot be ventured on in publishing the case.

The suit was brought by James R. Bradley, who on February 24, 1879, filed his petition in the District Court of Galveston county against the Southern Cotton Press and Manufacturing Company, located at Galveston, claiming that on the 13th of February, 1879, at about half-past 7 o'clock P. M., while his wife, Margaret Bradley, now deceased, was passing over a plank bridge, in a public thoroughfare, across the gutter at the intersection of Post-office and Thirtieth streets, in Galveston city, the servants and agents of defendant in charge of its engine criminally and recklessly, without signal or warning, blew out or let off all the steam and boiling water contained in the boilers and engines of defendant, used by it in compressing cotton in the factor's press, one of the cotton sheds and compresses of defendant, located at the intersection of said streets, which steam and hot water passed through an escapepipe attached to the engine and emptied into an air-tight plank flume that extended along and into the gutter to within six and one-half feet of said plank bridge, which was about one hundred and ninety feet from said engine; that when plaintiff's wife was on the middle of said bridge the steam and boiling water burst from the mouth of the flume suddenly, and with such force that his wife was so frightened, blinded, and scalded that she was knocked down and precipitated with great force into the gutter, and the boiling water rushed over her, covering and scalding her, from which injury she died on February 20, 1879, at the Galveston city hospital. He claimed damages in the sum of $50,000 for the wrong and injury, which he alleged to be wanton, cruel, and criminal.

Defendant excepted generally, and answered by general denial.

Answering specially, defendant pleaded that if the plaintiff's wife received any hurt or damage at the place described, it was received through her own carelessness, negligence, and indifference; that she was an habitual drunkard, and had been under the influence of intoxicating liquor for two weeks continuously before February 13, 1879, and had by the use of intoxicating liquor become stupefied, and was in an unfit state to be walking in the public streets, and was so on February 13, 1879, when she received the injuries from which plaintiff alleges she died; that her carelessness and negligent conduct produced the accident.

On October 10, 1879, the court overruled defendant's exceptions.

On October 30 the case was called for trial on the facts; defendant moved for continuance; motion overruled. Case tried before a jury, and resulted in a verdict for plaintiff for $12,500.

The evidence showed that on February 13, 1879, at about 8 o'clock at night, a woman came from Thirty-first street to Post-office street, in Galveston, and walked along Post-office street to Thirtieth street; that it was a dark night, but a light from a lamp-post and another light used at the cotton press enabled a person to see across the street at the intersection of Thirtieth and Post-office streets; that there was a small gutter three or four feet wide at the intersection of said streets, where the lamp-post was situated; that over this gutter, where it crosses Post-office street, is a plank culvert, which ends at the sidewalk where the lamp-post is situated, and a small plank bridge about three feet wide and four feet long over the gutter at a distance of about six and a half feet from the end of the culvert; that there is no cover over the gutter from the end of the culvert to the small bridge; that there was a vapor rising from the gutter to the height of about three and a half feet, which could be seen across the street; that the woman walked across the street to the small bridge; that the defendant's press was through blowing off steam from the boiler when she reached there; that the steam from the boiler had gone when she reached Post-office street; that when she reached the gutter, where the steam was rising about three and a half feet high, she stepped off the bridge into hot water in the gutter; turned over in the gutter about three times, got up, and came out; then walked around to the culvert, and in attempting to get from the end of the culvert to the sidewalk, fell a second time into the hot water in the gutter head-foremost, when she was pulled out.

On the same night, and very shortly after this, Margaret Bradley was seen near the small bridge with her clothing wet, and in a condition of mental stupefaction, which induced her arrest and incarceration in the prison that night, where she was found by her husband next morning. By him she was removed to the hospital, where, after lingering several days, she died. According to her husband's testimony, she told him during a lucid interval that she would die; that when she left Thirtieth street and got to the crossing something burst out and knocked her into the gutter, and she did not know what it was. The evidence showed that the husband made conflicting statements as to the cause of his wife's injuries. From her own statement and other testimony, it would seem clear that Mrs. Bradley was the woman who had fallen into the gutter. When found at the jail, the morning after the injury, her face was blistered, except the eyes and mouth, as from a burn; her arms and legs in a like condition, the skin being peeled off. According to the testimony of the attending physician, the inside of her mouth and throat were burned, and her death was occasioned by a burn from some scalding liquid or steam. When shrouded, it was discovered that serious bruises were upon her hips and thighs, as though, in the opinion of the witnesses, she had been beaten or kicked.

The place where the injury was received was surrounded with houses, it being in a settled portion of the city. The company was in the habit of blowing off steam from its engine and emptying into the gutter through the flume the hot water from its boilers, which contained two or three thousand gallons, about the hour of the evening when the injury was sustained. The flow of hot water always followed letting off the steam, and there was no evidence showing affirmatively an evil purpose on the part of the employees of the company in letting off the steam and water. No accident of a similar kind had occurred before, though there was evidence that witnesses had cautioned females not to go about the place at the hour when steam was blown off, and that the noise suddenly made on such occasions would cause a person of ordinary nerve, if on the bridge, to lose presence of mind.

There was evidence to the effect that Margaret Bradley had for some days been drinking liquor to excess, and that she was drunk on the night she was fatally injured, though on this point the evidence was conflicting. Other and more numerous witnesses gave her an exemplary character for sobriety. Arnold, who had charge of the cotton press, testified that no one could fall into the gutter where the woman fell, except through carelessness.

Counsel for defendant offered to read to the jury certain sections of the charter of the city Galveston, which was not permitted. This ruling was assigned as error.

The interlineations made by the court in charges asked by defendant are sufficiently referred to in the opinion.

The charge of the court to the jury was as follows:

“GENTLEMEN: Negligence is the want of such caution as is usually observed by persons generally in their acts. Gross negligence is greater or higher degree of negligence than simple or ordinary negligence. If you believe from the evidence that the plaintiff's wife, Mrs. Margaret Bradley, by her own negligence, contributed to the injuries complained of, then the plaintiff is not entitled to a verdict for any damages. If you believe from the evidence that the plaintiff's wife, Mrs. Margaret Bradley, was injured by the willful act, or omission, or gross neghgence of defendant, and that such injuries caused her death, and if you further do not believe from the evidence that Mrs. Bradley, by her own negligence, contributed to her injuries, then the plaintiff would be entitled to your verdict for such reasonable exemplary damages as you believe to be proportioned to such injuries.

W. T. STUART,

Judge 26th Jud. Dist.”

A. R. Campbell, for appellant.

I. The petition should have set forth clearly the residence of the defendant. (Paschal's Dig., art. 1427; Rev. Stats., art. 1195.)

II. The plaintiff's action being founded on the statute, the petition should either have alleged that plaintiff is the only person entitled to damages under the statute, or should have shown that the action was brought for the benefit of all who were entitled, and who they were. (Paschal's Dig., art. 16; Rev. Stats., arts. 2901, 2909; Railway Co. v. Moore, 49 Tex., 45; G., H. & S. A. Railway Co. v. Le Gierse, 51 Tex., 189; Sedg. on Stat. and Const. Law, 62; Thurston v. Prentiss, 1 Mann., (Mich.,) 200.)

III. The court erred in overruling defendant's application for a continuance. (Rev. Stats., arts. 1276, 1277, 2211.)

IV. The court erred in refusing permission for defendant to read in evidence sections of the Galveston city charter. (Schular v. Hudson River Railroad...