Texas & P. Ry. Co. v. Wilder

Decision Date27 February 1899
Docket Number722.
Citation92 F. 953
PartiesTEXAS & P. RY. CO. v. WILDER et al.
CourtU.S. Court of Appeals — Fifth Circuit

Joseph H. Wilder and his wife filed suit in the district court of Harrison county, Tex., against the Texas & Pacific Railway Co., for damages resulting from the killing of their son, Frank G. Wilder. The son of the plaintiffs was in the employ of the defendant corporation as fireman on a switch engine. The plaintiffs alleged that while their son was standing upon the apron that covers the space between the engine and tender, where they are joined together, and while he was performing his work as fireman the apparatus which was used for coupling the engine and tender together gave way and broke, thus separating the engine from the tender, and causing their son to suddenly fall between the engine and tender, upon the railway track where he was crushed to death by the tender and several cars which were attached to the engine. The petition further alleged that Frank G. Wilder was 18 years and 5 months old at the time of his death; that he was the only son of the plaintiffs, and was earning, at the date of his death, $60 per month, all of which he contributed to plaintiffs for their support; that he was sober, healthy, robust, and industrious; that his capacity to earn money would have rapidly increased from the day of his death up to the age of 21 years, and that he would have earned, for the last two years of his minority, the sum of $150 per month, which he would have contributed to the support of plaintiffs, all of which earnings were relied upon by plaintiffs as a help for their support; that the capacity of Frank G. Wilder to earn money after majority would have increased to the sum of from $150 to $250 per month for a period of at least 30 years, and that he would have contributed that amount to their support as long as they and he lived; that the plaintiff Joseph H. Wilder is 52 years of age, and his wife is 46 years of age, and that they relied upon their son to contribute his earnings after he attained the age of 21 to help support them in their old age, when they should become unfitted to earn a livelihood; that the locomotive and tender were in bad repair, and unfit for the use to which they were being applied, in this: that the coupling apparatus was defective and out of repair, and that the safety chains were unfit for the use to which they were applied,-- all of which was known to the defendant corporation, or could have been known to it by the exercise of ordinary care, and was unknown to Frank G. Wilder. Certain defects in the engine and the air brake were also averred. The defendant corporation applied to the state court for the removal of the cause to the federal court. The application was at first refused by the state court, but subsequently, and some months after the filing of the suit, the application for the removal was granted, and the cause was removed to the federal court. Before the determination by the state court of the application for the removal, the defendant corporation filed a general denial and answer in the state court. As special defenses, the defendant corporation pleaded that Frank G. Wilder knew, or could have known, of the defects in the engine and coupling, and therefore assumed the risk which might result from those defects; also that the plaintiffs consented to the employment of their son, and released all claim to his wages in consideration of his obtaining the employment; also that Frank G. Wilder was injured by the negligence of his fellow servant, the engineer on the switch engine, by the rough manner in which the engine was handled, and by the failure of the engineer to see that the engine was in good working order. The case was tried in the federal court, and resulted in a verdict of $3,000 against the defendant corporation, apportioned as follows: $2,000 for Mrs. Lurena Wilder, the mother of the decedent, and $1,000 for Joseph H. Wilder, the father.

There are four specifications of error. The first sets out that the court erred in permitting the depositions of three witnesses to be read in evidence. These were depositions which were taken in the state court before the removal. The second specification of error complains that the court, in substance, charged the jury that the plaintiffs could recover damages for the loss of prospective benefits to them after their son should have reached his majority. The third specification of error complains that the court refused, at the request of the defendant corporation, to give the following special charge: 'In this case you cannot allow any damages for what Frank Wilder might have contributed to his parents after he became 21 years old; that would be too speculative and uncertain. You can only allow the present value of the amount Frank Wilder would have earned during his minority, after deducting the expenses of the support of said Frank Wilder during minority. ' The fourth specification of error addresses itself to the refusal of the court to give the following special charge: 'In this case there is no direct evidence as to whether the deceased, Frank Wilder, knew of the condition of the coupling between the engine and tender. Now, if you believe it was a part of said Wilder's duty to examine and inspect said engine, then, in the absence of other evidence, he would be presumed to know of the actual condition of said engine and the coupling appliances.'

T. J. Freeman and F. H. Prendergast, for plaintiff in error.

W. C. Lane and W. H. Pope, for defendant in error.

Before McCORMICK, Circuit Judge, and BOARMAN and PARLANGE, District Judges.

PARLANGE District Judge, after stating the case, .

There is no merit in the second and third specifications of error, which are founded upon the false assumption that the damages in the cause were restricted to the benefits which the plaintiffs might have derived from the services of their son up to the time of his majority. We are clearly of opinion that the damages should not have been so restricted, and that in this cause it was proper for the trial judge to charge the jury that, in assessing the damages, they had a right to consider what reasonable expectations the plaintiffs had of pecuniary benefits to be received by them from their son after he should have reached the age of majority. The statutes of the state of Texas which give a right of action in cases like the one at bar provide, among other matters, that a suit may be brought for actual damages on account of injuries causing the death of any person by the negligence or carelessness of the owner of any railroad, or of any person in charge or control of any railroad, or of their servants or agents. The right of action is also given 'when the death of any person is caused by the wrongful act, negligence, unskillfulness, or default of another. ' The action is declared by the statutes to be for the sole and exclusive benefit of the surviving husband, wife, children, and parents of the decedent. The statutes provide, further, that, in the actions just stated, 'the jury may give such damages as they may think proportioned to the injury resulting from such death. ' Rev. St. arts. 2899, 2909. There is nothing in the statutes just referred to which limits the right of the parents in the present cause to the recovery of compensation for the services of their son during his minority. On the contrary, those statutes, as applied to the present cause, provide for full pecuniary compensation to the parents for the loss of their son. This is shown both by the language conferring the right of action and by the power given the jury in assessing the damages.

It has often been held, in similar cases, that the damages are not restricted to the loss of benefits to which the plaintiff had a legal right. It is plain that the compensation to the parents, under the statutes, would not be adequate if it was limited to the loss of the minor's services up to the time of his majority. If the objection be that it is difficult to ascertain the amount of the damages caused by loss of benefits after majority, it should be noted that this objection might also be made, although perhaps with less force, to the damages for loss of services before majority. There can be no certainty that a child will live to majority and perform services for his parents. If he lives, he may sicken, and become a burden to his parents. Still, it is not contended, as to damages up to a child's majority, that the difficulty in ascertaining them is a sufficient ground for rejecting a claim for them. It is evident that there is much difficulty in assessing damages resulting from loss of life, and that strict accuracy cannot be expected in a matter involving so much uncertainty. Yet the right of recovery for injuries resulting from death being plainly given, the courts, availing themselves of all the circumstances which may assist them in reaching a proper conclusion, must, whenever possible, afford the relief which the lawmaker intends to give.

The counsel for the plaintiff in error state in their brief that there is a conflict of authority on the point which we are now examining. It is plain to us that a number of cases which seem to hold in opposition to our views in this matter were founded upon statutes which restricted the right of recovery. In 3 Suth.Dam. §§ 1273, 1274, it is said that:

'In several states, the damages for the death of a child have been limited to the pecuniary benefits the parents had a legal right to claim for the child's services, and therefore the courts have confined the estimate to the period of minority. This restriction is believed to be contrary to the general principle on which pecuniary damages are allowed in favor of all classes who are

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6 cases
  • Beaman v. Martha Washington Min. Co.
    • United States
    • Utah Supreme Court
    • January 7, 1901
    ...can not be limited to such pecuniary benefits as the parents might have received from the child prior to his majority." Texas & P. R. Co. v. Wilder, 92 F. 953; City St. R. Co. v. Sciaacca, 80 Tex. 350; G. C. & S. F. Co. v. Compton, 75 Tex. 667; Boyden v. Fitchburg R. Co., 70 Vt. 125, 39 Atl......
  • Dahl v. North Am. Creameries
    • United States
    • North Dakota Supreme Court
    • December 16, 1953
    ...upon attaining her maturity. Damages are not restricted to the loss of benefits to which plaintiff had a legal right. Texas & Pacific R. Co. v. Wilder, 5 Cir., 92 F. 953; Redfield v. Oakland Consolidated Street Ry. Co., 110 Cal. 277, 42 P. 822, 1063; Peters v. Southern Pacific Co., 160 Cal.......
  • Gilman v. C.W. Dart Hardware Co.
    • United States
    • Montana Supreme Court
    • October 17, 1910
    ... ...          The ... United States Circuit Court of Appeals, Fifth Circuit, in the ... case of Texas & P. Ry. Co. v. Wilder, 92 F. 953, 35 ... C. C. A. 105, said: "There is no merit in the ... specifications of error, which are founded upon the ... ...
  • Zych v. American Car & Foundry Co.
    • United States
    • U.S. District Court — Eastern District of Missouri
    • February 13, 1904
    ... ... which depositions for use in the federal courts may be taken ... National cash Register Co. v. Leland, 37 C.C.A. 372, ... 94 F. 502; Texas & Pacific Ry. Co. v. Wilder, 35 ... C.C.A. 105, 92 F. 953; Shellabarger v. Oliver (C.C.) ... 64 F. 306; National Cash-Register Co. v. Leland ... ...
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