F.W. R.G. Ry. Co. v. Sivells , 28 Tex. Civ. App. 497 ( 1902 )

This is a statutory action by the surviving wife and children of W.B. Sivells to recover damages on account of his death, alleged to have been caused by the negligence of appellant railway company. From a judgment in favor of the plaintiffs, the company has appealed and assigned numerous errors.

As to the measure of damages, the trial court gave the following instruction: "If you find for plaintiffs, you will award them such sum as you may, under the evidence, reasonably believe plaintiffs would have received from the assistance of W.B. Sivells, had he not been killed, and you may in estimating such damages consider, under the evidence before you, the age of W.B. Sivells at the time of his death, the time he might live, and other evidence tending to show what damage, if any, plaintiffs may have received by reason of the killing of W.B. Sivells. You will find for plaintiffs such damages under the instructions herein given you as you think will compensate them for the loss sustained by the killing of said Sivells."

This instruction is assigned as error, and the assignment must be sustained. Railway v. Carstens, 49 S.W. Rep., 2; Railway v. Loeffler, 51 S.W. Rep., 536; Railway v. Morrison, 56 S.W. Rep., 745. The first part of this charge specifically and distinctly directed the jury, if they found for the plaintiffs, to award them a sum of money equal to the aggregate of all the pecuniary benefits that the plaintiffs would have received from W.B. Sivells, if he had not been killed. In other words, the jury were told that if the defendant was liable for the death of Sivells, it must pay in advance a sum of money equal to all of the pecuniary benefits the plaintiffs would have obtained from Sivells in the future. A charge similar to this was condemned by our Supreme Court in Railway v. Morrison, supra. But it is contended on behalf of appellees that the last sentence in the charge under consideration modifies and corrects the preceding sentence, and leaves the charge free from just ground of complaint. This position is untenable. The sentence referred to does not attempt to change, explain, or restrict the former; but, on the contrary, seems to refer the jury thereto for the correct rule as to the measure of damages, because it directs the jury to proceed "under the instructions herein given you." But if it could be held that the last sentence states the law correctly, then it would follow that it is in conflict with the sentence immediately preceding it; and as it does not attempt to withdraw or modify the objectionable sentence, it would leave the jury without any proper guide on the subject referred to, and would constitute reversible error. Railway v. Lehman, 3 Texas Ct. Rep., 866.

Counsel for appellees object to this court's considering the assignment of error addressed to the charge in question, because it was not complained of in appellant's motion for a new trial in the court below; the contention being that all questions, including questions of law, not presented in a motion for new trial, are to be considered as waived on appeal. As to questions of law, this contention is untenable. Telegraph Co. v. Mitchell, 89 Tex. 441.

We also sustain the eighth assignment of error. The evidence given by the witness Howard, and complained of in that assignment, does not fall within the scope of expert testimony, and should have been excluded.

We also suggest upon another trial the charge to the jury be so framed as to submit more distinctly and clearly the question of proper care and contributory negligence on the part of the deceased, in the manner of attempting to stop his team.

On all the other assignments presenting questions of law we rule against appellant. We express no opinion upon the merits of the case as developed by the testimony.

For the errors pointed out, the judgment will be reversed and the cause remanded.

Reversed and remanded.