*1
Tes.)
RY. CO.
FT.
& D. C.
v. STALCUP
WORTH
finding
sоciety,
his
cer-
instruction
that
.an
plaintiff they
tain issues for
what
should state
FT.
&
RY.
WORTH D. C.
CO.
STALCUP.
“fully compensate”
amount would
widow
(No. 599.)
pecuniary
objectionable
for her
loss was not
(Court
Appeals
leading
jury
compensation
Amarillo.
of Civil
of Texas.
to think that
April 11,
large,
Re-
1914. On Motion
should be
and should
the wife’s
cover
May
1914.)
hearing,
grief
companion-
loss
of her husband’s
ship.
—’
Negligence
Presumption
121*)
(§
1.
cases,
Trial,
Ipsa
[Ed. Note.—For
Loquitur.
Cent.
other
see
Bukden of Proof —Res
Dig.
296.*]
705-713,
718;
Dig.
715, 716,
§§
§
has
Dee.
fact
an
"Whilethe naked
accident
that
.yet
happened may
negligence,
no evidence of
may be
its character and the circumstances
133*)
(§
8. Trial
Considered —Im
—Matters
reasonably
that
such
to lead
to the belief
Argument Stricken Out.
happen-
negligence
not have
without
objectionable argument
Where
is with-
ordinarily
ed; and,
does not
when it is such as
jury
making
drawn
counsel
in-
happen,
that
affords reasonable
disregard it,
structed to
the error is cured.
controlling
arose from
of thb one
eases,
Trial,
[Ed. Note.—For other
Cent.
see
thing causing
injury.
particular
316;
Dig.
Dig.
§
Dec.
§ 133.*]
Negligence,
cases,
[Ed.
see
Note.—For other
(§ 118*) Argument
Dig. 9. Trial
Dig.
271;
217-220, 224-22S,
of Counsel—
Dec.
Cent.
—
§§
Reading
—
of
Discretion
from
Trial Court
121.*]
§
Report.
(§
278*)
foe
2. Master
Servant
—Action
Where defendant’s counsel admitted that
Sufficiency
of Evidence.
Death —
point,
he had several authorities in
read
Evidence,
of a
a
for the death
an action
cases,
per-
some
mitting
action
the trial
court
brakeman,
his
from
fall
held
to show
plaintiff
part
a
counsel for
read
negli-
freight
car was 'caused
defendant’s
charge
hearing
ease in the
of the
after the
gence
usual
suddenly stopping
un-
with
read,
any request
had been
that
absence
jar.
force
retired,
any
instruction
cases,
[Ed. Note.—For other
see Master
disregard
reading
case,
an
Dig.
960-969,
Servant,
956-958,
§§
Cent.
abuse of its discretion.
Dig.
971, 972, 977;
§ 278.*]
Dec.
cases,
Trial,
[Ed. Note.—For other
see
Cent.
290-293;
Dig.
Dig.
(§
137*) Operation
3.
Dec.
§§
118.*]
Master
Servant
§
—
Negligence.
of Train —
(§ 64*) Damages—Evidence.
10. Death
—
stopping
freight
The sudden
of a
death,
In an action for a brakeman’s
jolt,
or
be
absence of
with
.unusual
an
brought
timony
death
renting
a
ble.
widow, etc.,
for the benefit of
tes-
his
entitling
care, may
ordinary
a
widow that at
time of
injured thereby to recover.
servant
property;
owned no
were
cases, see Master and
[Ed. Note.—For other
live;
a house
Dig.
274, 277,
Servant,
269, 270, 27B,
§§
Cent.
wages
good provider
of his
admissi-
—was
278;
Dig. 137.*]
Dec.
§
(§ 289*)
cases,
Death,
4.'
Cent.
Master
Servant
[Ed. Note.—For other
see
—Action
Instructions—Contributory
S3;
Dig.
Dig.
for Death —
Dec.
§
64.*]
§
Negligence.
—
Damages
—
—
68*)
(§
11. Death
Evidence
Evidence,
in an action for
brakeman’s
Habits
Deceased.
falling
freight
car under the
death
wheels
from
Testimony of
her
husband’s
widow
switching, held of another car while
good;
habits
habits
at all that she
had
bad
go
of his
the issue
sufficient
anything
ad-
about—was
knew
contributory negligence.
damages,
as the
on
contributed
issue
well
missible
eases,
Note.—For other
see Master
[Ed.
him to
amount
the
life.
1092-1132;
Cent."Dig.
10S9,
Servant,
§§
probable
family
and the
duration of
Dig. § 289.*]
Dec.
—
— Freight
(§ 59*)
Brakeman
5.
Evidence
cases,
Death, Cent.
Note.—For other
see
[Ed.
Presumption
of Due Care.
.87;
Dig.
Dig.
68.*]
Dec.
§
§§
presumed by
freight
law
A
brakeman is
67*) Damаges—Evidence—Ex
(§
12. Death
ordinary
—
care in
with
to have acted
to
pectancy
of Promotion.
being
protect
thrown from the
himself
In
case
that deceased
force incident
usual and
conductor,
and stood
extra
a brakeman
work,
reason-
should have
conductor;
promotion
to be a
line for
anticipated.
ably
per
more
month
$45
$50
received
conductors
Evidence,
eases,
[Ed. Note.—For other
see
bearing
admissible as
than
brakeman—was
79;
Dig.
Dig.
59.*]
Dec.
Cent.
§
§
expectations.
upon his future
(§
194*)
Instructions—Weight
6. Trial
Death,
—
eases, see
Cent.
other
Note.—For
[Ed.
Evidence.
Dig.
Dig.-
67.*]
§
Dec.
§
In
action for
death
brakeman’s
471*) Opinion
(§
Evidence-
over,
freight
falling
the submission
ed
13. Evidence
run
car and
—Stop
Train.
Fact or Conclusion —
kill-
issue whether he was
witness,
Testimony
who
neg-
an adult
directly
proximately
defendant’s
employ
10 months
about
negligence,
together
railroad’s
been in a
ligence,
a definition
with
accident,
thrown,”
place
the train “was
“violently
expression
at
moving pretty fast,”
used in
and the
stopped “un-
objеctionable
it
his further
issues,
several
usually hard,”
tes-
weight
considered
charge
evidence.
timony
cars
from one
fell
that a brakeman
cases,
Trial,
see
[Ed. Note.—For other
Cent.
killed,
stopped and was
the train
456^66;
413, 436, 439-441, 446-454,
Dig: §§
of fact.
a statement
admissible as
Dig.
194.*]
§
Dec.
Evidence,
cases, see
other
[Ed. Note.—For
(§
296*)
7. Trial
2149-2185;
Dig. 471.*]
—Instructions—Amount
Dig.
Dec.
§
§§
Cent.
(cid:127)Recovery.
Appeal
(§ 750*) Assignment
charged
and Error
that if the
Where
—
—Charge.
not,
plaintiff, they should
in estimat-
found
refusal
any
anguish
of error
damages,
An
mental
may
consider
presumption that
suffered,
grief
there was
decedent’s widow
rail-
damages
as the result
killed
her
loss
brakeman was
sustained
Rep’r
Key-No.
Dig.
topic
Dig.
Indexes
Series
Am.
Dec.
&
see same
and section NUMBERin
&
* Forother cases
*2
167 SOUTHWESTERN
REPORTER
present
road’s
to
did not
the issue
The
appel-
trial resulted in a
for the
verdict
whether,
happening
from
mere
lee in
$7,500.
the sum of
accident,
likely
were
to find
alleged
petition
in the
J. E.
that
Appeal
cases,
[Ed. Note.—For
other
see
Brown, deceased,
violently
from
Error,
thrown
Dig.
3074-3083;
Dig.
Cent.
Dec.
§§
appellant by
750.*]
negli-
cars of
reason of
gence
—
particu-
Negli —
(§
following
194*)
15. Trial
Instructions
gence Questions
lars,
to wit:
of Fact.
—
Such
been
“(a)
braking equipment
That the
the car
invading
province
jury.
the
cases,
oil which
riding
the said Brown was
defec-
Trial,
[Ed. Note.—For other
see
Cent.
tive,
pawl
in this: That the
on said
ratchet
Dig.
Dec.
456-466;
413, 436, 439-441, 446-454,
§§
braking equipment,
holding
and
and
the bolt
Dig.
§ 194.*]
same, was so
broken
miss-
bad order and
ing-
braking equipment
as to
(§ 256*) Pleading
render the said
16. Master
use-
and Servant
—
dangerous
attempting
—Designation
less and
use
Ac-
of Act under Which
same,
(b)
Brought.
That the train and
on which
car
tion
riding
being
petition
said
Brown
A
at said time
an action
administra-
tor,
was killed ran
operated
alleging
moved and
at an unusual and un-
road on
which intestate
necessary high
speed
purpose
Worth, Tex.,
rate
for
Den-
from Ft.
they
ver, Colo.;
being
operated,
up
making
for which
were
moved and
that he was killed in
being
operated
Colorado;
and while
suddenly stopped
so
train in
moved and
Texas
moved
to be
Worth,
through
with the
unneces-
railroad ran
Ft.
unusual and
trains from
sary
desig-
proximate
Tex., Denver,
nation that it vhis force and
and shock
Colo.—was a sufficient
defendant,
brought
results of the
of the said
under the state
alleged
preceding paragraph,
statutes,
Employers’
the said
but under the federal
Dia-
bility
65
violently
(Act
April 22,
J. E.
Brown was
thrown to
Act
c.
35 Stat.
ground
Comp.
Supp.
p.
1322]).
and run
[U.
on the tracks
defendant
St.
over and
aforesaid.”
killed as
cases,
[Ed. Note.—For other
see Master and
815;
Dig.
Servant,
§
Dig.
809-812,
Cent.
Dec.
§§
ground (a)
pleadings
The
set out
in the
256.*]
issue
was not submitted to the
the
under
as an
Damages.
(§ 99*)
Death
17.
—Excessive
court,
only
ground
trial
set’
$7,000
A
verdict of
for
death
years old,
brakeman,
dustrious,
experienced, sober,
(b).
in-
facts in this case show
promotion,
and earn-
in line
ap-
employ of
brakeman in
was a
per month,
ex-
$125
$140
was not
pellant company,
crew
the train
at
cessive.
working
which he was
cases,
Death,
[Ed. Note.—For
see
other
Cent.
Gaynor,
composed
Dig.
Dig.
125-130;
accident
occurred was
99.*]
Dec.
§§
§
brakeman, Thompson,
conductor, O’Neil,
gineer,
en-
Rehearing.
On Motion for
they
Shaw, fireman;
were
Appeal
(§ 1050*)
and Error
—Harmless
doing
incident
work
of Evidеnce.
Error —Admission
carry
making up
they
train which
were
death, where
In an
brakeman’s
action for a
wholly
night
Trinidad,
had
evidence that he and his wife
been
Colo.
out that
o’clock to
dependent on his
was admitted
salary
without
partially
up, and was
This train was
objection,
any,
error,
in
own
if
admission of evi-
standing
designated
record
in the
what
any property
dence
he
passing
prior
harmless,
as
dent
track.
Just
the acci-
since the former
killed was
substantially included the latter.
engine
statement
Brown and his crew
took
cases,
Appeal
see
[Ed. Note.—For other
went down to
main
side track
west
4153-4157,
Dig.
Error,
1068, 1069,
§§
Cent.
line,
record
No.
known
as track
Dig. 1050.*]
Dec.
f
cars,
which,
the rear
cut of
6 of
.Appeal
Court,
from District
Dallam Coun-
probably others,
into
Judge.
ty;
1-Iill,
D. B.
making up.
accident
Staleup, administrator,
Action
R. E.
happened
handling this
while the crew were
City
against
&
Rail-
Ft.
Denver
Worth
cars,
string
in this
of 32
and the evidence
way Company
another. Dismissed as
case relates to
the time
was done from
what
judg-
judgment,
the other defendant before
picked uр
string
3,000
crew
of cars
plaintiff,
ment for
defendant
Ft. Worth
feet south of where
The evidence shows that
accident occurred.
City Railway Company appeals.
& Denver
string
of ears
Affirmed.
pulled
thirty-
last,
until
Thompson
Barwise,
Worth,
passed
switch,
&
of Ft.
Clif- second
about two
Braly,
Chauncey,
Dalhart,
lengths by
passing
ford
B.W.
three
which the
Falls,
appellant.
designated
reached,
of Wichita
R. E. Stal- track
“A” on
eup, Dalhart,
Harrington,
map
record,
Del
of Ama-
in the
and located about 20 feet
rillo,
Burney,
Goree
Turner and Cowan &
south of the most southern water tank shown
&
appellee.
Worth,
map.
string
Ft.
all
While
cars was
starting point,
moved north
Staleup,
appellee,
Gaynor
HUFF, C. J.
R.
E.
O’Neil and Brown
rode
Brown,
thirty-second
as administrator of the estate of E.
J.
rear car until
reached
brought
deceased,
recovery
stand,
map,
suit
dam-
the switch
which
marked “C”
ages
occasioned
the death of J. E.
switch to
was the
track No.
March, 1911,
Gaynor got
who
lost his life while en- there
off to throw
switch
gaged
appellant,
service
as so that
certain
ears could be kicked
switchyards
Texline,
up
brakeman
back on that
Tex.
track. O’Nell rode on
until
topic
Dig.
Dig. Key-No.
cases see
Rep’r
other
* For
section NUMBER in Deo.
&
same
Am.
&
Series
Indexes
Tex.)
D. C. RY. CO.
&
FT. WORTH
STALCTJP
got
got;
off
would not
A,
be over 8 or 10
I
feet.
did
where
be
throw
cars
to switch
moving south,
of these the train was
rear
switch so
body
dragged
passing
southerly
in a
feet
kicked in onto
could be
*3
thirty-
top
direction.”
nearly
on
the
He
of
testified
Brown was
Brown remained
track.
riding
got
him,
purpose
cut
dead
this
when
to
car
the
he
and tried to
second
of 6
talk,
just
passing track,
but
where
could not. The
ran
down onto the
over
cars
wheels
partially
they
coupled
about
the
the abdomen.
be
onto
last
I
were to
“The
got
up
saw Brown after
occurred after
I
off
made
train. The accident
the ear he was
thirty-second
on
center,
the
car
cleared
rear
or
car had
about
the rear
switch
the
and was
standing up.”
body
A,
acci-
He
the
stated
Brown’s
after
further:
lying
depot
front
I
trucks
“When went
under the
back from
dent was found
the
place
investigat-
occurred,
where the accident
X
thirty-first
the
side
car on the east
ed
find
fall,
to
out as to how Brown
to
came
opposite
track,
north
the
a
little
up
and after this examination I never did make
appellant’s
my
this
tank.
wit-
north water
Bach of
happened
mind or find out how Brown
to
any-
accident.”
they
notice
nesses testified
any
thing
He
further
or out
the
unusual
testified
to the condition of
pawl
the
on
train from the time
the
movement
the
brake:
my
picked up
string
“From
him, Brown,
ac-
32
until the
.ears
association with
this
as a
trainman, conductor,
brakeman,
say,
I
or
would
occurred,
speed
to
cident
either
to
or as
capabilities
as to his
ductor,
as to
or
a brakeman
con-
stop
made;
any
was
any
there could not have been
better.”
every particular
was done in the usual
O’Neil testified:
customary manner;
was al-
there
couple
That the
“train
32 cars moved a
ways
jarring
less
more or
of the cars
lengths
dropped
car
switch
north after I
off at the
[referring
switching,
running up
switch A].
caused
to
I do not know
whether the last car of
these went north of
slack; and that thеre
from 8 to 12 inch-
was
just
the north
or
tank
I
not.
do not know
how
freight
All
es of slack between all
cars.
go beyond
far
did
After
tank.
knew
work that
to
string
the train crew
was
passed
south end of that
of cars
over
[referring
that switch
to
A]
switch
and cleared
be
and the cars that were to be handled
done
get
passing track,
it so we could
back on the
I
passing
on
and switched in
track.
gave
engineer
stop signal,
a
and the train
Gaynor,
conductor,
testified that when
stopped
response
signal;
was
to this
then
gave
engineer
back-up
signal,
next
a
the accident occurred
was
he
somewhere be-
response
back-up signal
engineer
to this
B;
tween switch A and
that he was unable started back.
I think the entire train had
location,
to determine his exact
that passed
track;
the switch
the last car in the
passed
lengths
gave
was about 5 or 6 car
train
the
from the
had
the switch at
I
the time
stop signal.
ordinarily
It
takes from 10 to
string
cars;
end
rear
of 32
that he
Immediately
15 seconds to throw a switch.
C,
walked over there from switch
where he
gave
back-up
switch,
I
after
I
threw
got off,
signal.
elapsed
was about
minutes
or
Some 18
20 seconds
between
1%'
gave
stop signal
back-up
I
the time
got
after he
off at
C
switch
until
the acci- signal.
signals
very
The two
would
close
dent occurred.
“As
I
to whether
saw
together.
In
to
reference
the estimates I have
just
car,
heard Brown fall from
I
given
the switch and
the
heard
throwing
as to the time between the
back-up
giving
signal,
break,
his lantern
over him X heard him
and when the wheels ran
switch,
time to
I
have never ex-
throw.the
As
I
moan.
soon as
perimented
see what
to
the actual time would
gave
break,
engineer
heard the lantern
I
pass-
After I
be.
ing track,
had thrown the switch for the
given
engineer
stop
signal,
a
gave
and had
violent
the back-
I
the time
up signal,
up
I then started
north make
signal
moving
this
the cars were
south and cut;
is, to
cut
the cars
off
that would be
stopped
response
the train was
passing
kicked
our train on
I
into
track.
up
signal.
train;
gave
signal,
started
the east side of the
I
run-
O’Nell
was
also
and call-
ning. My
along
purpose
running up
ed to me that Brown fell or was killed.
get up
place
was
cut off these
fall,
As
soon
heard
I
Brown’s lantern
I
they got
fast,
cars
too
and so
before
lying.
lying
went to
where
was
He was
cars would not
the other
over the
happening
first I
switch. The
knew
about
across the rail and between the
trucks of
running up along
I
accident was when
pair
thirty-first
forward
wheels
train I heard
lantern fall and
car,
is,
between the two wheels
groan.
I
then
a
think was
about
car and
up north from
I im-
north
half
where Brown fell.
end of that car. There are two wheels
signal.
mediately gave a
When the train
stop
that constitute the trucks of the
and stopped
the accident I
north
after
of where
there are a
set
trucks near each
end
body
moving
The cars
was.
Brown’s
south at the time I
nal.'
lying
right-hand
stop
gave
sig-
the car. He was
this sudden
They
feet,
think,
I
moved about 30
should
was
looking
Denver,
side
truck
towards
signal.
gave
standing
I
after
still
on what would be the east
I
side.
examined
lying.
got
I
when
where Brown was
It
very
the indications there
long
gave
to determine whether
I
not have been
after
could
baсk-up signal
fall,
until I heard the lantern
him,
not
other wheels had run over
over minute.
I cannot remember whether
not
signs
I
found from the
the south
instantaneously.
running up
I was
thirty-
two wheels on the east side
pretty
there,
hard
that.
and it
to remember
signal
hearing
in
gave
stop
body,
body
first car ran
over
I
after
When
response
lantern fall the train
dragged,
judge,
had been
I should
25 or 26
was.
I
went back where Brown
to it.
then
feet,
body
lying just
and his
north
body
pretty
opposite
I
near
think his
tank,
very
the north water
It
close.
water
tank.
was close to the
It
water
REPORTER
SOUTHWESTERN
'282
in the
handled
ing-
up
miss his
step
only
guess
near as
neighborhood
usual
string
the
once
cars
*4
n I
up
in the
pulled up
stopped
having
ward
amount
of 32
happens
though
When
went
there
miles
As to the
entire
was
was dead
move
these
cars moved on
onds I know—
He slow
that
signal
back
guess
He referred
having
this
when I
to
stop
time
the
could
up signal,
back,
onds.
lantern
about
stop
rection.
happening
ways
Brown
stopped,
and
was
those
he was
car
tank.
dragged
I
top
“As to the manner
“When
stopped
Shaw,
The
gave
stop
alоng
car.
movement
north to
passing
of the last
wrong
off of the
necessary
while
we were
nearly opposite
stopped,
in a while even
I make
these
and the
rolled down. The
Brown had been
signal
back to where
about the
an hour.
cars
about 10
it would
work;
two
not
cars
car was
in the work
end of
like man would walk.”
a train
usual
I
and started
engineer, Mr.
ordinary
As to how
cars I should
very
I think the
got
there
started back
groan.”
said, ‘Charlie,
the
I
got
I
from the
standing
I
The last time
fall,
about
in rare instances
and while
this occasion
was notified
she would
guess
cars to throw a
body.
I
engine.
the train
stopped
can
and before
recall
past
I
of this accident
signals,
a
length
at
cars,
little
slack
got
in the
this
stop signal
track
few feet.
I think
is true
way,
could not
fireman,
of 25
the
is
I
stop signal,
as
back-up signal,
is handled.”
just got
engine
just starting back. The
recollect, and was under the for
south of
the next to
of this train. We
time
when
top
car;
the knuckle
north two or three
the switch
feet when
moving
way
the
toas
indications,
require
got
At
time. After
The south
nothing wrong
exаctly.
signal
south of the north
there was
that there would be
He said that
a
cars were
south
a brakeman
until I
the
couple
place
I
time the
of a car when there
long
handling
feet.
that
stop
that is
I
rough
backing,
I
then a
move.
sitting.
body
I
Thompson,
do not
and
you
though
probably.
time that
at
that
heard
train.
got
testified:
I saw Brown
you open
judge
doing switching
got
I
I
time the
very
the train
always
yard
after
killed.
first I knew
it was after
signal
feet in
is,
near
would
kick these cars in
started the
It is
man off of the
found out afterwards
north water
onto our train
coupled
gdt
I
distance and
Just
and
to a
train started. After
estimate.
exact,
when was
tank. Brown’s
Brown was killed
knuckle
there.
car of this
back-up signal,
the last car. The
nothing
got
5 or 10 or
rare
It was
close
a lantern
the
and saw his
moving slow,
accident
remember
a train is handled
of a train. This from the
and
As I went
moving
you get
would be
having
After
place
it
the
will stumble and
thirty-second
the water tank
when I
stop signal
on this
dragged
the
brakeman,
do,
“after
lapsed
in the
appeared
a
stop
I
I
would
testified:
occasions,
stoр
engine moving-
just
it had moved
very
while
passing
between
together,
stop
ordinary
rear
southerly
I
got
car
open
six or
stop signal.
engine
unusual
tank. The
getting
I recollect
very slow,
train was
back
helped
cars back.
heard
until
about the until
After we
I
happened
the back
signal
about
knuckle.’ like
string
in a cut1
went
the cars
occasion
lengths;
few sec
fall and (cid:127)short
tank
got
is
signal
whether moved
between
car.
running
back-up
be
way
fall,
coming-
with a
started
so that
in the
engine
top
string
rough
seven
body. that without
noth
track
after
body
little
even
only
that
just
just
sec
and
and
the
the
the taken
re
up
di- made the
as
I
I
90 Tex.
89
ped.
32 on which
tice later.
dence
the Ft. Worth &
Arch. V.
been shown
body
with
length
last and between the wheels of the truck
the wheels
ner
ings
south.
slowed down
the northeast corner
the Colorado
Southern was dismissed
pellant
has
reasonable evidence
planation
cident is
things
gence,
be such
curred.
sudden
unnecessary
evidence was insufficient to
when
want
gine
stopped
court was
south far
onds
brakeman
cars.”
tion of
assignments
know how
we
The
This suit was
Was the death of Brown occasioned
The
[2]
[1] “While
throw the
Tex.
exceed
judgment
circumstances
particular
management
when we
body
to me.
defendant or
happened may
of the
stood still after we
the
how
was found
The
it started south. The
killed.
time,
last seen alive. After the accident
shows with reasonable
yet
rate
appellant,
does
at' 40 feet. The
negligent
There
stopping
care.”
as to
Bryan,
moving
slack
got
every
long
engine
such
after
witnesses
deceased was
stop.
long
six
in
but
cars
car ran
34 W.
I
switch.
got
It
short distance and
force
Southern
of error
just
was taken.
is
that
did
error
character of the accident and
lead
thing causing
speed given by
be under
time we
dragged
long
or seven
switch
signal
on the
no evidence
it stood
the accident arose from
whose
under car
Washington
of the car with unusual and
deceased
going
south,
happen,
near the center of the
in so
naked
use
originally
truck
in the
before
not know
Suggs,
stop
was.
and
say they
just
stop signal
Denver.
reаsonably
enough
over
in
764; McCray
I
first,
the cars—it
proof
proper care,
of that
engine
to back
Railway Company
question
north is estimated
cannot estimate
doing?
servant,
go
urges
when we heard of
it would not
fact that an accident
submitting
jar?
out of
some
still;
No,
appellee
the
pulled
miles,
ordinary
if those who have
you
following special issues,
will answer
defendant”;
language
of the
subject
you
be, and answer said issues
find the facts to
are
order in which
submitted.
construction
“Special
E.
No.
issue
1: Was the deceased J.
it was the view of ,the trial court that the de
violently
night
8, 1911,
Brown, on
March
guilty
negligence.
fendant was
rule the fifth
We over
or car of the Ft. Worth
thrown from train
propositions
City Railway
Company, in the town
& Denver
foregoing
you
Texline, Texas? If
answer
thereunder. The court submitted the issue
proceed
you
negative,
l'in the
will
issue No.
jury;
preceding
if
answered the
report your finding
further, but
court.
“you
affirmative,
issues in the
will then state
affirmative,
you
issue in
But
answer said
if
following
you
proceed
“directly
whether
killed,
answer the
then
or not” Brown was
spеcial issues:
proximately by
negligence,”
and
answering
“In
etc.
“Special
E.
issue
2: Was the said J.
No.
special
4, you
issue No.
are in
killed as a direct
Brown run over and
proximate
said train
‘negligence’
structed
term
being violently
meant
result of
thrown
failure,” etc., defining
or car?
think,
We
“Special
No. 3:
E.
issue
Was the said J.
when the
issue
are
to
read
violently
caí-
thrown
said
gether,
*7
jury
certainly
would
understand
proximate
any
un-
as
usual or
direct
result of
unnecessary
jar
company
employSs,
or
that the
shock
of said train
defendant
and its
or car?
liable,
before it would be
must have
to
failed
you
“Special issue
fore-
No. 4: If
answer the
person
ordinary
exercise such care
aas
going special
3 in
affirma-
issues Nos.
prudence would have done under
similar
you
tive,
unusual
will then
whether or not the
state
jar
unnecessary
of said
shock or
circumstances.
running
killing
car, and
over
train or
proposition
assignment
under the sixth
proxi-
directly
E.
of said
J.
court, by
expres-
is to the effect that the
mately
by
negligence of
defend-
caused
“viоlently
Ry.
agents
ant,
Co.,
sion
or
thrown”
Ft.
& D.
its
em-
used
W.
C.
issues
ployes
charge
in
answering
of said train.
suggestion
to a
amounted
special
you
“In
issue No.
court that Brown was thrown from the cars
by
‘negligence’
instructed
term
is
are
meant
as a result of
do
person
We
not know
care
failure to exercise such
as a
ordinary prudence
would
appellant’s
exercise under
whether we
the force of
com-
similar circumstances.
same and
plaint
criticism,
sug-
or
but we do not see a
connection, you
“In this
are
instruct-
further
gestion
language
that such
means that Brown
proximate
by the
ed
term ‘direct and
that
cause’
cause,
by
negligence
is
or
meant the immediate
that without
from the car
was thrown
of the
happened.
which the accident would not have
appellant.
It
to
occurs
us that
“Special
No.
issue
4a: Did deceased J. E.
required
jury
court
to find more than was
Brown,
shock or
which he was
arising
the risk to and
assume
necessary
upon
anything
jar,
any,
before
could find
if
of the
train or
riding
at the time he was killed? appellеe.
jury
Under the
all
issue
foregoing special
answering
“In
issue
find,
understand,
to
as we
was that the train
you
following,
No. 4
will
to wit:
observe
stopped very
unusually
suddenly and
was
hard,
employé
You are instructed that
such risks as
assumes
ordinarily
thereby
are
incident
to the
Brown was
issues, they
to
that
caused
undertakes,
service he
knows
and such others as
fall; but,
under these
were re-
by ordinary
discharge
of,
or
care
“violently
quired
find
thrown”
to
that
before
of. But
his duties
have known
employer
car,
is
not one of
authorized
risks,
employé
assumed
unless the
knows of such
appellee.
find
by ordinary
risk, or
have
increased
known of
care would
proposition
[7] The
under the seventh as
jury
it.
If
believes
that the de-
signment
effect that under
violently
is to the
the sixth
ceased,
Brown, was
E.
thrown from
J.
riding,
ear
required
or
on which he
special
jury
issue the court
jar
or
reason of
and
or shock
said train
paid
“fully
sum,
now,
if
what
com
find
pensate
is
or shock was not such
that
as
pecuniary
her”
loss
due
ordinarily incident
said
service which
engaged
likely
time,
E.
at said
Brown. That
J.
Brown
death of
knew,
exercise
not one of
jury
meaning
as
be construed
discharge
of his duties
care in the
large,
compensation should
and should
be
you
known,
would
foregoing special
then
will answer
have
grief
anguish
and,
mental-
of his
No;
4a,
“cover the
issue No.
un-
SOUTHWESTERN REPORTER
ing
society
law to
the court
com-
because
issues
of law
wife for
the loss of
replied
had been
panionship
settled.
if
The court
husband.”
of her
permitted
grant
Ry.
McVey,
one he would
both the
In
Co.
case
privilege,
compen-
“fully
appel-
charge using
thereafter
counsel for
34, a
the term
charge.
lant
did
some
approved
read
fact cases.
It
is not
sate” was
request
any
shown
gave,
the record that
re-
in-
at the
there
case
in this
quest
retired,
charge
appellee,
and no
No.
follows:
I as
given
structions were
hereby
disre-
the court
instructed
“You are
any
you
plaintiff
issue of
gard
find in favor
if
reading
of the case. We
noth-
find
estimating
you
not,
dam-
liability,
ages,
must
ing
showing
in the record
the court
anguish
any
mental
into consideration
take
Ry. Wesch,
abused his
may
discretion.
grief
suffered on
have
Mrs.
that
of the
must
63; Ry.
husband and
her
death of
Ross,
App.
account
Co. v.
55 Tex. Civ.
estimating the
_
take into consideration
necessity