Fort Worth R. G. Ry. Co. v. Wilkinson , 50 Tex. Civ. App. 48 ( 1908 )

Appellee sued appellant to recover damages for the death of her husband and recovered judgment in the sum of eleven thousand seven hundred and fifty dollars, from which this appeal is prosecuted. The grounds of recovery submitted to the jury were: First, the negligence of the appellant's employes in carrying or permitting to be carried a wild engine to a place on the main line where the incoming passenger train, on which deceased was fireman, collided with it, resulting in his death; second, the failure of appellant's employes, whose business it was to look after its engines, to exercise ordinary care to discover the absence of said engine from the roundhouse tracks and its presence on the main line in time to have informed those on the incoming passenger train and to have prevented the collision; and third, the excessive rate of speed at which the passenger train was running when it came in contact with the engine.

Appellant's first assignment of error complains of the court's ruling in admitting the testimony of the witness Graves. The question and answer follow: "Suppose that the hostler goes over to water that engine that has been left and finds it has gone out on the main line and an incoming passenger train due or passing by, what precaution would then be taken to avoid the collision? A. I don't — Defendant's counsel: We object to that; it is a supposititious case; no application to the facts here. Court: Overrule the objection. Defendant's counsel: We except; what this man might do or any other man might do is absolutely an opinion. Court: Overrule the objection. A. Well, he ought to notify somebody about it at once, and maybe he probably would hunt me up or probably hunt somebody up; it is hard to tell what he would do; he should notify somebody." We are of the opinion that this ruling could not possibly call for a reversal of the case even though it is technically erroneous, since the collision was due to the presence on the main line of one of appellant's engines unattended by anyone and which could not reasonably have been at such place under such circumstances without negligence on the part of appellant, and which appellant in no way attempts to explain. To the mind of the writer the assignment is without merit for the further reason that the answer of the witness is so obviously true that his testifying to it could not have done any harm. Necessarily, if one of appellant's employes discovered such a state of affairs he ought to have notified somebody, and this is the substance of the testimony.

We do not believe the evidence called for the submission of appellant's special charge No. 1. There is nothing to indicate that appellee's husband would have been killed if the incoming passenger train had been running less than six miles an hour. Indeed, the circumstances, including the nature of the wreck, are such as to authorize the conclusion that the accident was due largely to the excessive speed of the train. It is hardly reasonable that there would have been any wreck at all if the train had been proceeding at the rate allowed by the city ordinances, that is, not exceeding six miles per hour. But if so, as suggested by counsel for appellee, a rate of speed of even less than six miles might have been negligence under the circumstances and the requested charge would have excluded such a finding.

The last assignment complains of the excessiveness of the verdict. Deceased was sober, industrious, and of splendid habits, was twenty-seven years of age, a strong, healthy young man with a life expectancy of about thirty-seven years. He was earning from seventy-five to one hundred dollars per month at the time of his death. Under these circumstances the verdict was not excessive. Texas Mexican Ry. Co. v. Higgins, 44 Texas Civ. App. 524[44 Tex. Civ. App. 524]; Texas Pac. Ry. Co. v. Johnson, 48 Texas Civ. App. 135[48 Tex. Civ. App. 135].

All assignments of error are overruled and the judgment is affirmed.

Affirmed.

Writ of error refused.