San Antonio & A. P. Ry. Co. v. Engelhorn

• Decision Date: 17 October 1900
• Citation: 62 S.W. 561
• Parties: SAN ANTONIO & A. P. RY. CO. v. ENGELHORN et al.
• Court: Texas Court of Appeals

62 S.W. 561

SAN ANTONIO & A. P. RY. CO. v. ENGELHORN et al.

Court of Civil Appeals of Texas.

October 17, 1900.

Appeal from district court, Bexar county; S. J. Brooks, Judge.

Action by Bertha Engelhorn and others against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed conditionally.

Denman, Franklin, Cobbs & McGown, for appellant. Price, Green & Green and Lewy & Sehorn, for appellees.

JAMES, C. J.

The wife, daughter, and mother of L. E. Engelhorn, a conductor of defendant's train, recovered judgment against appellant for damages alleged to have been sustained by them by reason of his death, alleged to have been caused by a hand hold giving way, or contact with a cattle guard, while he was in the act of pouring water into a hot box; he having descended a ladder on the side of the car for that purpose. The forms of negligence alleged were that the cattle guard was too close to the track to admit of the performance of his said duty safely; also the unsafeness of the hand hold. We conclude as facts that the evidence showed negligence on the part of defendant, causing the death of Engelhorn, in one or both of these matters, and that there was no contributory negligence on the part, nor knowledge of the danger, whereby he could be held to have assumed the risk thereof. The amount of the verdict will be considered in another place.

In regard to the first and second assignments, touching certain testimony of the witness Hammer, we think that testimony to the effect that in like circumstances conductors and brakemen frequently go down ladders of cars to look after the running apparatus while the train was in rapid motion, upon the issue of contributory negligence, was proper. Such testimony tended to show that it was the common or customary course pursued in performing such duties, and was pertinent to the question of ordinary care. Hammer also testified on cross-examination that he had gone down on the side of cars running at the same rate of speed that this train was running. This was also objected to. He was defendant's witness, and testified to the dangerous nature of the act. In view of this testimony, plaintiff was entitled to discredit it or qualify its effect by showing that he himself had gone down ladders under the same conditions; he also testifying in the same connection that he considered himself a prudent man.

Under the third assignment, the admissibility of the American tables of mortality to show the probable length of Engelhorn's life is questioned, in connection with the following testimony of the witness McMillan: "That such table is the mortality statement of all the standard insurance companies of the United States. That it is made up from the experience from such companies of death of the persons that they have actually insured, and that that is the only data from which such tables are compiled. That the table represents the experience of such companies for the past one hundred years upon the people they have insured, and not the average man. That they do not insure everybody. That they are pretty careful about whom they insure. That these tables do not undertake to estimate how long the average man would live, but only estimate the average life of the class of people whom they insured. That it represents the average duration of life of the people they have insured, but not the average of the human race. That a man who follows the business of a railroad conductor or brakeman would not be insured by such companies. They could only get what is known as `industrial insurance.' That, when conductors or brakemen get any kind of insurance, they...