T. & P. R'Y Co. v. Carlton

• Decision Date: 30 November 1883
• Docket Number: Case No. 1554.
• Citation: 60 Tex. 397
• Parties: THE T. & P. R'Y CO. v. JOHN CARLTON.
• Court: Texas Supreme Court

60 Tex. 397

THE T. & P. R'Y CO.

v.JOHN CARLTON.

Case No. 1554.

Supreme Court of Texas.

Nov. 30, 1883.

APPEAL from Kauffman. Tried below before the Hon. Green J. Clark.

Leake & Henry, for appellant.

J. J. Hill, for appellee.

STAYTON, ASSOCIATE JUSTICE.

The cause of action in this case, as stated in brief of counsel for appellant, is found to be substantially correct, and is as follows:

“Plaintiff brought this suit against the defendant for damages, alleging that defendant unlawfully and wrongfully procured and caused the plaintiff's son, William Jefferson Carlton, of the age of eighteen years, or about that age, under the parental authority and control of plaintiff, without his consent to quit the service of plaintiff and to enter into that of defendant, whereby plaintiff was deprived of the services and society of his son for a long time, to wit, thirty days, and greatly troubled in mind; that his son while in defendant's employment as aforesaid, and working on its line of railroad between Marshall and Jefferson, in the state of Texas, was on the 16th day of January, 1880, injured, so that on the 24th day of said month he died; that the son was sober, industrious and dutiful, and plaintiff was old, poor, infirm and needy; that deceased had for years contributed to the support of plaintiff, who had reasonable expectation of its continuance; that his son, prior and up to the time of his injury, earned $2.50 per day, most of which was applied to the support of plaintiff, and plaintiff had reasonable expectation of receiving support from him to the amount of $500 annually during plaintiff's life, and plaintiff, at the death of his son, had reasonable expectation of fourteen years' continuance of life.

Plaintiff further alleges that he is the only surviving parent and only beneficiary of the said William Jefferson; that said injuries, wounds and bruises, of which his son died, were caused by the negligence of defendant, and by the defendant's then and there using cars of dangerous construction to the employees engaged in coupling them; that said cars were of peculiarly dangerous construction to said William Jefferson while engaged in coupling them by reason of their having ‘duffing bumpers' on their ends; that his son was not informed or skilled in said dangerous business of brakeman, all of which was known to defendant; that his son was wanting in the caution and discretion necessary in such dangerous employment, and defendant, who knew said facts, did not exercise due care and prudence in employing him.

He charges that said injuries were occasioned by some negligence on the part of defendant--some want of care, skill and precaution on its part unknown to plaintiff.”

There was a judgment for the appellee for $2,500.

On the trial, it appeared that on or about the 26th December, 1879, the son, with the consent, or at least with the knowledge and without objection from the father, was employed to work in the appellant's yard at Sherman. The testimony is somewhat conflicting as to what his duties were in the yard, and also as to the familiarity of the son with the duties of a brakeman.

On the same day the son was employed he was sent off on the road as a brakeman, and this seems to have been done contrary to the wish of the father. After being absent for some days the son returned home, and was then told by his father to remain at home until his return in the evening, but the son did not do so, and returned to the train, with which he seems to have stayed, acting as brakeman, until about the 16th January, 1880, when, in attempting to couple cars, he was injured so that he died about the 24th of the same month.

There is no evidence showing that the cars which the son was coupling at the time he was injured were in any respect defective nor that the injury resulted from any neglect of the appellant to furnish safe road, cars and appliances, and careful and competent servants to conduct its business.

It appears that the son was in his nineteenth year, a man in stature, weighing about one hundred and eighty pounds, and that he was a person of ordinary intelligence and prudence for one of his years.

In instructing the jury the court, among others, gave the following charge: “If the jury are satisfied, from the evidence, that plaintiff is the surviving father of William Jefferson Carlton, and that the said William Jefferson was employed by the defendant as a brakeman upon its trains, and that while he was engaged coupling its cars he received injuries from which he afterwards died, caused by the negligence or carelessness of the defendant, its agents, servants or employees, and that the deceased did not, by his own negligence or carelessness, contribute to his own death, the jury should find for the plaintiff.”

Throughout the case the court seems to have been of the opinion that the act of sending the son upon a train, without the consent of his father, to act as brakeman, was in itself an act of negligence, such as would not only prevent the relation of master and servant from existing between the railway company and the son, but as would also enable the father, under the statute, to maintain an action for damage sustained by the death of his son. There was, as before said, no proof of negligence by the appellant such as would render it responsible in damages for an injury, resulting in the death, to an employee.

If the action was based upon a father's common law right for loss of services of his son, it may be true, although the injuries which the son received resulted in death, that he could maintain his action if the son was employed without his consent, and was thus withdrawn from his service, or if employed with his consent to perform certain labor, his son was afterwards without his consent placed at labor more hazardous, through which he was injured. The petition and charge of the court, however, presented a case based upon the statute, giving to certain persons an action for injuries...