Castleberry v. Gulf, C. S. F. Ry. , 274 S.W. 1014 ( 1925 )

As we view the record, the judgment rendered by the trial court was the only one he could have rendered in the case. As shown in the statement above, appellants' suit was for damages Mrs. Castleberry might have recovered for injury she suffered if she had not died, and for damages appellants suffered (they alleged) because of her death. At common law a cause of action did not exist in appellants' favor for any of the damages they sought to recover. Ellyson v. Ry. Co., 33 Tex. Civ. App. 1,75 S.W. 868; Guttierrez v. Ry. Co., 102 Tex. 378, 117 S.W. 426. Hence appellants' right, if any they had, to recover against appellees, must be referred to a statute.

It cannot be referred to the statute (article 5686) providing that cause of action upon which suit has been brought by the injured party for personal injuries other than those resulting in death shall not abate by reason of his death, but shall survive to the heirs and legal representatives of such injured party, for appellants not only did not allege in their petition that the injuries to Mrs. Castleberry did not result in her death, as they must to have stated a cause of action in their favor for damages for such injuries (Black v. Ry. Co. [Tex. Civ. App.] 161 S.W. 1077), but, on the contrary, they alleged that the injuries she suffered did result in her death. It is apparent, therefore, that a judgment in appellants' favor for such damages not only would not have been supported by their pleadings, but would have been contrary to same.

Nor can appellants' right to a judgment in their favor be referred to the only other statute applicable, to wit, article 4694, which creates a cause of action in favor of the husband, wife, children, and parents of a person whose death is caused by the neglect or carelessness of the owner (or his servants or agents) of a railroad, steamboat, stagecoach, or other vehicle for the conveyance of passengers for actual damages they suffer because of such person's death, for the jury found that the injury to Mrs. Castleberry from negligence on the part of appellees did not cause or contribute to her death; and they found, further, that appellants did not suffer any pecuniary loss because of her death.

The judgment is affirmed.