Texas Cent. Ry. Co. v. Stewart

• Decision Date: 18 October 1892
• Citation: 20 S.W. 962
• Parties: TEXAS CENT. RY. CO. v. STEWART.
• Court: Texas Court of Appeals

20 S.W. 962

TEXAS CENT. RY. CO. v. STEWART.

Court of Civil Appeals of Texas.

October 18, 1892.

Error from district court, Eastland county; J. M. MOORE, Special Judge.

Action by Sallie G. Stewart against the Texas Central Railway Company. There was judgment for plaintiff for $5,000, and defendant brings error. Reformed and affirmed.

The other facts fully appear in the following statement by HEAD, J.:

On the 19th day of January, 1883, Sallie G. Stewart, then a minor about three years of age, with her mother and younger sister, were passengers in a regular passenger train of plaintiff in error, going from Cisco to section house No. 19, on its line of railroad in this state. At the town of Corban, a station on said railroad a short distance from defendant in error's destination, the train upon which she was riding was stopped, and the locomotive detached therefrom and sent off on other business. When the locomotive was again coupled to the cars, this was done so negligently as to cause a collision, of sufficient force to throw defendant in error from the seat upon which she was sitting against the stove in the car, from which she received a cut over one of her eyes of considerable length, and also a concussion of her back, from which serious injuries to her kidneys afterwards resulted. At the time of the collision between the locomotive and the cars, defendant in error, with her mother, was sitting on the seat immediately fronting the stove, the day being cold. This suit was filed by defendant in error, suing by her next friend, A. J. Stewart, against plaintiff in error, October 24, 1883, to recover damages for the personal injuries inflicted as aforesaid. The amount of damage alleged to have been caused from the injury to the back is $7,000. A trial on December 17, 1886, resulted in a verdict and judgment in favor of defendant in error for $1,000 for the injuries to the head, and $4,000 for the injuries to the back, and from this judgment this writ of error is prosecuted.

L. W. Alexander, for plaintiff in error. Fleming & Moore, for defendant in error.

HEAD, J., (after stating the facts.)

In its charge to the jury, the court, in its statement of the nature of the suit, used this language: "Plaintiff brings this suit, by her next friend, against defendant, in the sum of $10,000 for certain alleged personal injuries." Also, the court, in the eighth paragraph of the charge, used the following language: "If you find for plaintiff, the form of your verdict will be: `We, the jury, find for the plaintiff, and assess her damages — First, for the injuries of the head, and consequent suffering therefrom, in the sum of ___ dollars, (filling up the blank with the amount assessed, which must in no event exceed $3,000;) second, for the injuries to plaintiff's back, and consequent suffering, we assess the damages in the sum of ___ dollars, (filling up the blank with the amount found, which must in no event exceed $7,000.)' If you find for defendant, you will simply so say." And plaintiff in error, in its first assignment, complains that this reference by the court, in its charge, to the amount sued for by defendant in error, operated to its prejudice. We do not think the amount claimed in the petition was given sufficient prominence in the charge to operate to the prejudice of the plaintiff in error. Railway Co. v. Burnett, 80 Tex. 538, 16 S. W. Rep. 320.

In its second assignment, plaintiff in error complains that the court erred in instructing the jury that the law required the defendant to take great care in the management of its trains. In the case of Railway Co. v. Burnett, cited above, a charge that carriers of passengers by rail are required to use the highest degree of care for their safety was — as we think, correctly — approved; and we are clearly of the opinion that the degree of care exacted by the charge of the court in this case was not higher than that imposed by law.

"In order to defend from liability on account of alleged contributory negligence on the part of plaintiff or her mother, the burden of proof is on defendant to satisfy you of such contributory negligence, under the law as herein defined." We believe that the use of the word "satisfy," in this paragraph of the charge, was error, and that, to sustain the defense of contributory negligence, no more than a preponderance of the evidence upon that point is required. McBride v. Banguss, 65 Tex. 177. But an examination of the record satisfies us that there was no evidence raising the issue of contributory negligence, and that no charge upon this should have been given. The only evidence we find in the record upon this point is the uncontradicted fact that defendant in error was sitting on a seat next the stove, by the side of her mother, and if it be conceded that a child three years old could, in any case, be charged with contributory negligence, (which we do not wish to be understood as conceding,) or if it be conceded that negligence of the parent would be imputed to the child, under the circumstances of this case, — which, in this state, is at least doubtful, (Railway Co. v. Moore, 59 Tex. 67,) — we are clearly of the opinion that it is no negligence for a mother, in charge of a three-year old child, to occupy the seat in the car nearest the stove, on a cold day, when this is necessary for their comfort.

We have examined plaintiff in error's fourth assignment, and the several propositions thereunder, and are satisfied that there is nothing in the numerous objections therein made of which it can justly complain, and no useful purpose would be subserved in their discussion.

The fifth assignment of error complains of the form of the verdict the jury were required, by the charge of the court, to adopt, in case they found in favor of the plaintiff; the contention being that the form of this verdict required the jury to find damages both for the alleged injury to the head and to the back, when the evidence would have authorized a finding that there was no injury to the back. The form of the verdict required by the charge of the court is quoted above, and, if this were all that is said in the charge upon the subject, it would raise quite a serious question. We believe, however, that, taking the whole paragraph of the charge together, there is no reasonable probability that the jury could have been misled in allowing damages under either head which were not caused by...