Schaff v. Sanders

• Decision Date: 24 March 1925
• Docket Number: (No. 613-4110.)
• Citation: 269 S.W. 1034
• Parties: SCHAFF v. SANDERS.
• Court: Texas Supreme Court

269 S.W. 1034

SCHAFF v. SANDERS.

(No. 613-4110.)

Commission of Appeals of Texas, Section A.

March 24, 1925.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by Newton Sanders, as next friend for Charles Sanders, against C. E. Schaff, receiver. Judgment for plaintiff was affirmed

by the Court of Civil Appeals (257 S. W. 670), and defendant brings error. Affirmed.

M. O. Flowers, of Lockhart, and Page & Jones, of Bastrop, for plaintiff in error.

Leon Green, of Austin, and C. F. Richards and E. B. Coopwood, both of Lockhart, for defendant in error.

CHAPMAN, J.

Newton Sanders, as next friend for his minor son, Charles Sanders, brought this suit against C. E. Schaff as receiver of a certain railroad company. The allegations of plaintiff are that while a passenger on one of defendant's trains, and while sitting by an open window, he was struck in the eye by a cinder and received injuries from which he lost the sight of his right eye. At the time of the injuries Charles Sanders was 16 years of age, and at the time of the trial 18 years of age. No allegations were made in the pleadings of plaintiff that Charles Sanders had been emancipated by his father at the time of the alleged injuries, but proof was offered that Charles Sanders had been so emancipated, and this without objection on the part of the defendant, and in addition to this, the father, Newton Sanders, over the objection of the defendant, and after all the evidence in the case had been introduced, filed among the papers this waiver:

"Now comes Newton Sanders in the above styled and numbered cause and says: That he is the father of Charles Sanders, a minor, and plaintiff in this cause; that he is the only surviving parent of the said Charles Sanders, his mother being dead; that he disclaims all interest and right in the earnings of the said Charles Sanders until the said Charles Sanders becomes 21 years of age, and disclaims all interest and right and claim to any sum or sums of money that the said Charles Sanders may be entitled to or recover from the defendant in this cause by reason of the injuries complained of in this cause against the defendant. [Signed] Newton Sanders."

Plaintiff recovered damages in the sum of $5,000, and this judgment was affirmed by the Court of Civil Appeals at Austin. 257 S. W. 670.

The questions raised by defendant, Schaff, in his application for writ of error are: First, that plaintiff having alleged negligence in general terms in one paragraph of the petition, and having alleged negligence specifically in another paragraph of the petition, that plaintiff was bound by the specific allegations, and that the trial court erred in rendering judgment on the negligence alleged in general terms; second, that the plaintiff having failed to plead the emancipation of Charles Sanders, the court erred in permitting proof of his emancipation, and the court erred in permitting to be filed among the papers at the time it was filed the waiver of Newton Sanders, and that for these reasons recovery could not be had in this case for loss of time of Charles Sanders during his minority; third, that error was committed in refusing defendant a new trial on the ground of certain newly discovered evidence.

The pleadings necessary for a discussion of the first proposition are set out in the opinion by the Court of Civil Appeals. By a careful reading of paragraphs 3 and 4 of plaintiff's petition, it is shown that two entirely separate and distinct grounds of negligence are alleged. Paragraph 3 charges negligence in the selection of inadequate and sufficient spark arresters for the engines of defendant, and in failing to keep in repair and properly manage and operate said spark arresters, without making specific allegations as to why the spark arresters were inadequate and insufficient, and without stating how they were not kept in repair and in what particulars they were not properly operated. Paragraph 4 alleges negligence on the part of defendant in failing to have the train upon which plaintiff was a passenger run, managed, and controlled in a safe, proper, and careful manner, and by placing unskillful, careless, and reckless employees in charge of the same. Then follows in said paragraph 4 allegations of specific acts showing the negligent operation of the train. It is thus shown that paragraph 4 is not a specific statement of the ground of negligence generally stated in paragraph 3, but that paragraph 4 contains specific allegations of a different ground of negligence from that mentioned in paragraph 3. The grounds of negligence alleged in paragraph 4 were abandoned by plaintiff, for, after stating the extent of his injuries, he states in paragraph 9 that such injuries were caused by the negligence of defendant that is mentioned in paragraph 3, and none of the specific acts of negligence alleged in paragraph 4 were proved, and the negligence mentioned in said paragraph was not submitted to the jury. With the negligence alleged in paragraph 4 eliminated, then the only grounds of negligence to be considered are those mentioned in paragraph 3. The question of whether the defendant was negligent in the manner alleged in paragraph 3 was submitted to the jury, and the verdict on this issue was in favor of the plaintiff. The only evidence offered by plaintiff to show that defendant was negligent as found by the jury was the testimony of defendant that he was struck in the eye by a cinder while sitting by an open window on the train, and that the injury received resulted in the loss of the sight in the right eye. The question arises as to whether this evidence was sufficient to raise the issue of negligence on the part of defendant in selecting, keeping in repair, and operating its spark arresters. This precise question was before the Court of Civil Appeals of the Fifth District in Railway Co. v. Parks, 40 Tex. Civ. App. 480, 90 S. W. 343 (writ of error denied), and that court held that such evidence was sufficient to raise the issue mentioned. We copy from that case the following:

"There was evidence tending to show that hot sparks and cinders did escape from the engine, and that th...