Lancaster v. Sexton , 247 S.W. 574 ( 1923 )

^* Writ of error refused, April 4, 1923. The contention first presented, to wit, that the trial court erred when he refused to sustain appellants' plea setting up certain facts which they thought entitled them to have the suit abated, is overruled. The facts referred to were substantially the same as those set up in appellants' petition in their suit to set aside the order of the county court of Harrison county appointing Mrs. Fannie Dunn temporary administratrix of the estate of her husband, appellee's intestate, and to set aside the order of said county court appointing appellee permanent administrator of said estate. This court affirmed the judgment of the lower court, denying appellants such relief, on the appeal therefrom prosecuted by them. 245 S.W. 958.

Complaint is made because the trial court refused to give to the jury certain special charges requested by appellant. Had the charges been given, one of them would have instructed the jury that Dunn assumed the risk he incurred, and that appellee therefore could not recover, notwithstanding the engineer was negligent in running the train too fast, if Dunn knew he was running same too fast, and "made no protest nor effort to have the speed reduced." Another would have instructed them that Dunn was guilty of contributory negligence, if he knew the engineer was running the engine too fast, and "made no protest nor effort to have the speed reduced." And the other one of the charges would have instructed the jury, with reference to contributory negligence, that "the burden is generally on the plaintiff to make out his case," that "there is generally no presumption that the party injured was guilty of contributory negligence," but "where a party's own acts or conduct, or want of action, is part of the transaction that causes his injury there is no presumption in his favor," and that "the jury must determine as best they can whether Dunn protested against fast running."

If the risk Dunn incurred was one he had assumed, the burden of proving the fact was on appellants (Pennsylvania Ry. Co. v. Jones, 123 F. 753, 59 C.C.A. 87; Kenyon v. Railway Co., 187 Iowa 277, 173 N.W. 44), as it was if he was guilty of contributory negligence (Railway Co. v. White,238 U.S. 507, 35 S. Ct. 865, 59 L. Ed. 1433, Ann.Cas. 1916B, 252). Dunn and the engineer, White, were the only persons shown to have been on the engine at the time it left the track and turned over, fatally injuring both of them. No other person, so far as is shown in the record, knew anything about whether Dunn did anything he should not have done or omitted to do something he could and should have done, which was a cause of the accident. And appellants have not pointed out and we have not found in the record any testimony which would have warranted an inference that Dunn was in any way at fault. If, therefore, it should be conceded, and it is not, that the requested charges were sufficiently complete and correct statements of the law, it not only was not error to refuse them, but it would have been error to have given them to the jury; for in the absence of any testimony showing what Dunn's conduct was on the occasion, the law would assume that he acted as a reasonably prudent person should have acted under the circumstances. Wells Fargo Co. v. Benjamin (Tex.Civ.App.) 165 S.W. 120, and authorities there cited.

Complaint is made of the argument of counsel representing appellee at the trial of the case. It appears in the record that at the time her husband was injured and died Mrs. Dunn resided, and thereafter continued to reside, at a point in Lousiana nearly 300 miles from Harrison county, Tex., where this suit was commenced and prosecuted; and it further appears that she employed S. P. Jones, an attorney residing at Marshall, in said Harrison county, to commence and prosecute this suit. With reference to this appellee, as an attorney arguing the case in his own behalf as administrator, said, quoting from the bill of exceptions:

"That doubtless argument and criticism would be made of her having brought the suit in Marshall, but that Mrs. Dunn had acted wisely in choosing Mr. S. P. Jones as her attorney; that he had a great deal of practice over large sections of the country, and that he was pitted against the best of the lawyers, and that he had no superior and was the peer of any from El Paso to New Orleans."

It appears in the statement of facts that Mrs. Dunn testified as follows with reference to the amount received by Dunn for service he performed:

"It is hard to say just what he would make as fireman; sometimes would make good money and then again wouldn't make so much. He was paid twice a month. I have seen him draw low checks and then high ones. I remember one particular one when he was running he drew $140 or $145 for two weeks. Of course that one was high. It would average at least $75 or $80 every two weeks. He would bring the checks to me and I would handle them and pay the bills."

Commenting on the testimony set out, appellee in the course of his argument to the jury, it appears from another bill of exceptions, said that the witness' estimate of the average amount earned by her husband every two weeks "was not as much as Dunn's average wages," and that the fact that she had underestimated the amount thereof showed she was honest and fair-minded. It further appears in the statement of facts that Mrs. Dunn testified that while her husband was employed as a fireman at the time of the accident, he had before that time been "promoted to engineer"; that he took the examination, passed it, "and ran some as engineer before he was killed." The first year her husband "was promoted to engineer," she said:

"He ran some; the next year the business wasn't so good, and I don't think he ran so much, and then the third year he ran quite a bit as engineer. I think that was the year he was killed, early in the season. When he was not running as engineer, he would be firing."

And the witness Hazel Collette, Mrs. Dunn's sister, testified that:

"Mr. Dunn was firing when he wasn't running as an engineer. He was an engineer and fireman."

It appears from still another bill of exceptions in the record that in closing the argument on behalf of appellee, said S. P. Jones, evidently having in mind the testimony referred to, urged the jury to take into consideration among other things, in determining the amount of their verdict, the fact that, while Dunn was employed as a fireman at the time of his death, "he had a chance to become a regular engineer," and in the future, had he lived, "probably would have earned larger sums of money than he was earing at the time he was killed."

We think it sufficiently appears from the statement made that the argument complained of was not improper in material particulars, was not calculated to wrongfully affect any right of appellants, and therefore was not conduct of the attorneys which requires a reversal of the judgment.

The contention remaining undisposed of is that the judgment is excessive in amount. It appears in the record that $4,000 of the sum awarded appellee was for suffering endured by Dunn after he was injured and before he died. Appellants suggest no reason why the recovery on that account should be regarded as excessive. The $21,000 found to be the damages on account of Dunn's death was apportioned in the verdict of the jury as follows: $7,000 to his widow, and $7,000 to each of his two children, one a boy 4 years old, and the other a girl 3 years old, who survived him. Dunn was strong and healthy, economical, had no bad habits, and was very much attached to his family, witnesses testified. He was 33 years old when he died, and had been earning an average of $75 or $80 every two weeks, or $160 or $171 a month. The contention is overruled.

The judgment is affirmed.