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

• Decision Date: 13 January 1912
• Citation: 143 S.W. 690
• Parties: TEXAS & N. O. R. CO. v. MILLS et al.
• Court: Texas Court of Appeals

143 S.W. 690

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

Court of Civil Appeals of Texas. Dallas.

January 13, 1912.

Appeal from District Court, Kaufman County; C. M. Smithdeal, Judge.

Action by W. L. Mills and others against the Texas & New Orleans Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed in part, and reversed and rendered in part.

Baker, Botts, Parker & Garwood, Terry & Brown, and Garrett & Shearon, for appellant. J. Pat Coon and Lee R. Stroud, for appellees.

TALBOT, J.

This suit was instituted by W. L. Mills, for himself and in behalf of his minor children, who are named in the petition, and by his married daughters, Lucy Stovall, joined by her husband, Pink Stovall, Nannie Smith, joined by her husband, Melvin Smith, and Lillie Smith, joined by her husband, George Smith, against the appellant to recover damages, alleged to have been sustained by them on account of the death of Mrs. Laura Mills, wife of the plaintiff, W. L. Mills, and mother of his minor children, for whom he sues, and of his married daughters, plaintiffs herein.

There are two counts in the petition. In the first, it is alleged that the plaintiff W. L. Mills and his wife, Laura Mills, were passengers on one of the defendant's passenger trains going from the town of Kaufman to the town of Mabank, in the county of Kaufman, state of Texas; that the train upon which they were traveling arrived at Mabank after dark, and stopped at the proper place at defendant's depot for passengers destined to that place to alight from the train; that when the train stopped Mrs. Mills, followed by her husband, carrying their baggage, went out on the platform of the car in which they were riding to alight therefrom; that the platform and steps of that car being somewhat crowded Mrs. Mills, carrying a child in her arms, stepped across to the platform of the adjoining car, and stood thereon, waiting for her husband and for an opportunity to get off the car; that while so standing the agents and employés of the defendant negligently moved up said car and train with a bound and with a jerk, suddenly and unexpectedly to the said Mrs. Mills, and, after going a very short distance, suddenly stopped the car with a jerk, which threw Mrs. Mills against the railing of the platform, or across the brake handle or lever, or against some iron or other object on the platform; that, as a result of this negligence of defendant, Mrs. Mills' nervous system, brain, and spine were greatly injured, and a very serious wound inflicted near and just below the lower part of her breast bone, at a point between the navel and ribs; that said wound was internal and in the region of the upper part of the abdomen, and produced a serious rupture; that the wound and injuries sustained were very serious and permanent, and caused Mrs. Mills to suffer great pain.

It was further alleged that said injuries rendered Mrs. Mills helpless, or almost helpless, and unable to labor or attend to her household duties, and perform other labor and work, and as a result she died May 25, 1910; that deceased was a good wife and mother, healthy, energetic, and very industrious; that she had six small children; that she worked in the field; that at the time of her death she was only 42 years old; that her children were of ages as follows: William, 19; Nannie Smith, 17; Lillie Smith, 16; Lucy Stovall, at that time unmarried, 14 years old; Lena Mills, 12; Lonnie Mills, 11; Matthew Mills, 8; Shadie Mills, 6; and Jesse Mills, 3 years old. Judgment was prayed for in behalf of W. L. Mills, husband of deceased, in the sum of $5,000, and in behalf of the infant plaintiffs in the sum of $3,000 each, and in favor of the married adult plaintiffs in the sum of $2,000 each, aggregating $29,000.

The second count in the plaintiffs' petition set up the matters and injuries as alleged in the first count, and further alleged that deceased greatly suffered from the injuries complained of, especially from the rupture; that on the 25th day of May, 1910, deceased having already had many serious and painful attacks, the rupture or hernia suddenly became worse, and she died, suffering great pain for many hours; that if the court should find that the injuries alleged did not result in the death of Mrs. Mills, then, as survivors of the cause of action in favor of deceased, they prayed for damages in the sum of $12,000 on account of mental pain and anguish suffered by deceased, which said cause of action, plaintiffs alleged, survived to them as heirs of decedent.

Appellant answered by a general demurrer and general denial, and by a special demurrer, setting up that plaintiffs' petition did not show how death could have...