Sills v. Ft. Worth & D. C. Ry. Co.

• Decision Date: 13 December 1894
• Citation: 28 S.W. 908
• Parties: SILLS et al. v. FT. WORTH & D. C. RY. CO.
• Court: Texas Court of Appeals

28 S.W. 908

SILLS et al. v. FT. WORTH & D. C. RY. CO.

Court of Civil Appeals of Texas.

December 13, 1894.

Error from district court, Tarrant county; L. P. Greene, Judge.

Action by Samanthy Sills and Christopher Sills, her husband, against the Ft. Worth & Denver City Railway Company for injuries causing the death of William Shelly, son of Samanthy Sills. Judgment for defendant, and plaintiffs bring error. Affirmed.

R. J. Boykin, for plaintiffs in error. Stanley, Spoonts & Meek, for defendant in error.

Conclusions of Fact.

TARLTON, C. J.

This suit was brought by Samanthy Sills, joined by her husband, Christopher Sills, to recover damages for injuries resulting in the death of William Shelly the son of the former. Shelly was killed in Donley county, Tex., on January 22, 1889, while acting in the capacity of fireman for the company. His death was caused by a derailment of the train, due to an accumulation of sand on the track. The verdict of the jury, resting on sufficient evidence, requires the conclusion that the accumulation of sand was not due to the negligence of the defendant, and we so find.

Conclusions of Law.

1. The court excluded testimony offered by the plaintiff to show her impoverished financial condition, as indicating that she would have had a reasonable expectation of deriving pecuniary benefit from William Shelly, if he had lived. For this purpose the testimony was admissible (Railway Co. v. Kindred, 57 Tex. 491), but appellant is in no attitude to complain of its exclusion in this instance, because of the failure to show negligence on the part of the defendant, in the absence of which a right to pecuniary compensation of any degree would be wanting. Besides, testimony of a different character was elsewhere introduced, showing that Mrs. Sills might reasonably expect pecuniary help from William Shelly, if he had lived. We do not, however, hold that this fact would have justified the exclusion of the evidence had negligence been proved. We refer to it as strengthening our conclusion that the jury found an absence of negligence; otherwise, the testimony would have required a verdict for the plaintiff in some amount.

2. The offered testimony of the witness Clem Nichols, that he once saw "cars in that locality, loaded with sand," was properly excluded. This testimony neither showed nor tended to show that the defendant was guilty of negligence in permitting sand to accumulate upon its track. So we approve the action of the court in...