Texas & N. O. R. Co. v. Crowder

• Decision Date: 13 March 1888
• Citation: 7 S.W. 709
• Court: Texas Supreme Court
• Parties: TEXAS & N. O. R. CO. v. CROWDER <I>et al.</I>

7 S.W. 709

TEXAS & N. O. R. CO. v. CROWDER et al.

Supreme Court of Texas.

March 13, 1888.

Appeal from district court, Harris county; JAMES MASTERSON, Judge.

This action was brought by Mary Crowder, joined pro forma by her present husband, against the Texas & New Orleans Central Railroad Company, in the trial court, alleging, in substance, as follows: That defendant without her consent or knowledge, and during her absence from her home in Houston, employed her minor son, George Cohn, and sent him to Beaumont, Tex., and put him to work in defendant's railroad yard there as night brakeman; that the boy, Cohn, was 17½ years old, and bore the appearance of a mere boy, and that defendant knew that he was a minor when it employed him; that said employment of braking cars in the night-time was rendered more dangerous from the fact that defendant's railway tracks in the yard at Beaumont were unfilled between the ties; that the boy was employed only in the night-time; that while braking cars along one of said unfilled tracks, and at about 9 o'clock at night, and while endeavoring to step out from between two of defendant's moving cars which he had coupled, the left foot of said boy went through the unfilled space under the iron rail of the track, and between the ties, so that he could not withdraw it, or make his escape, and, being so caught and detained, he was run over by one of defendant's cars, and had his leg crushed and broken, from the effects of which he died a few days afterward; that said Cohn was the sole dependence of his said mother for support and maintenance, and she sues for the value of his services, which he would have given her had he lived. Defendant pleaded the general issue, but offered no evidence on the trial of the case. There was a verdict and judgment for plaintiff for $1,500, — the charge of the court fixing the measure of damages at what the boy would have contributed to plaintiff's support during his minority, less his living expenses, — and defendant brings the case here by appeal.

W. N. Shaw, for appellant. F. F. Chew and Wm. P. Hamblin, for appellees.

STAYTON, C. J.

No witness was at the place where the deceased was injured, and it became important to the defendant to show the situations of persons who were testifying to facts on which the jury were expected to determine whether he was injured under such circumstances as would make the appellant liable, and to show the means of knowledge possessed by them. To this end, a witness, who testified by deposition, was asked: "How far were you from Cohn when he was hurt, and was it day or night?" His only answer to this was: "It was night when the accident happened; some time about eight o'clock." The following interrogatory was also propounded to the witness: "Could you see, and did you see, what Cohn was doing just at the time he was hurt? And do you know what he was doing, or how it was he came to be injured?" The answers to this cross-interrogatory were: "I saw Cohn's lamp at the time he was acting as brakeman. I knew that he was then at work as brakeman. He was run over by the cars." There was a motion to exclude the deposition, on the ground that the cross-interrogatories were not answered, and on the ground that the answers were evasive; and the motion was overruled. In view of the facts shown, the questions were pertinent, and, if answered, would have shown the knowledge, and means of knowledge, possessed by the witness, which would have enabled the jury to place the proper estimate on the general statements made by him. His position with reference to the place where the deceased was injured was important, for his means of knowledge of facts testified to by him largely depended upon that fact. The interrogatory that sought information as to this he failed to answer at all, and there is nothing in his answers to other interrogatories which gave the desired information. Whether he could see, and did see, what the deceased was doing just at the time he was hurt, was important; but he failed to state whether he could or did see him at that time. His statement that he "saw Cohn's lamp at the time he was acting as brakeman" was not an answer. He may have seen the lamp, but not the deceased; and the answer does not even fix the time when he saw the lamp. Cohn was night brakeman, and the sight of the lamp may have been at any time during the night while he was acting as brakeman. This part of the answer was evasive, as was the residue of it, and we are of the opinion that the deposition should have been excluded.

The first paragraph of the charge was as follows: (1) "It is the duty of a railroad company to keep its tracks and switches in good, safe condition for use; and a neglect on its part to perform this duty renders the railroad liable in damages to an employe receiving injuries from that cause whilst in discharge of his duty, without negligence on his part, and are in same manner liable to those entitled in case of death of the employe." This was a correct general statement of the law applicable to the case made by the pleadings; and if the appellant's counsel was of the opinion that facts existed which would make it negligence for the deceased to attempt to make a coupling, knowing the track at the place to be in bad condition, a charge should have been asked that would have presented that phase of the case to the jury.

It is urged that the court erred in giving the following paragraph of the charge: (2) "If the evidence convinces you that George Cohn was a minor son of plaintiff, Mary Crowder, and was employed by defendant company; and if, in the exercise of reasonable care and diligence, the railroad company's agents employing him could and should have known of his minority; and if you further find, from the evidence, that whilst engaged in the capacity of brakeman, without negligence on his part, he was injured substantially as alleged in the petition; and if said injuries were caused to deceased by reason of the bad condition of defendant's track at place of injury, — find for plaintiff, and assess his damages." This is an action brought by the appellee to recover damages for an injury that resulted in the death of her son, an employe of the appellant, and, to entitle her to recover, it was incumbent on her to show such facts as would have entitled her son to recover had he lived. Were he alive and plaintiff, the fact that he was a minor, and employed by appellant with knowledge of that fact, would not entitle him to recover; and the only respect in which his minority could be taken into consideration would be upon an inquiry as to whether the employer had used such care towards him as his years or inexperience would make necessary. Railway Co. v. Carlton, 60 Tex. 400; Railway Co. v. Crowder, 61 Tex. 262, 63 Tex. 505. Were this an action by a parent for the loss of services of a minor child, the rule would be as stated in Railway Co. v. Redeker, 67 Tex. 190, 2 S. W. Rep. 527. Such, however, is not the character of this action. The effect of the charge complained of was to make it incumbent on the appellees to show such facts as would ordinarily fix liability on a master for an injury to a servant while in his employment, and, in addition to this, the further fact that the deceased was a minor whose age could and should have been known to the appellant. This imposed a burden on the appellees greater than the law imposes. In such a connection, as used in the charge, the fact of minority was irrelevant, and it ought to have been omitted.

A witness was permitted to state that the deceased, a short time after he was injured, in answer to an inquiry as to how he came to get hurt, said that "he jumped off the cars, and went to make a coupling, but as he went to come out his leg got fastened under the rail; that he could not get it out, and they ran over him." We are of the opinion that his declarations were not res gestæ, and should have been excluded....