Houston & Texas Central Railway Co. v. Boozer, 70 Tex. 530

Houston & Texas Central Railway Co. v. Boozer

70 Tex. 530 | Tex. | 1888

Stayton, Associate Justice.

This action was brought by appellee, through his next friend, to recover damages for an injury alleged to have been caused by negligence of the employes of the appellant.

At the time of the injury the appellee was a child in his twelfth year, and he was injured while attempting to cross the railway track.

The first assignment of error is as follows: “The court erred in the fifth paragraph of its charge to the jury, wherein it is stated by the court to the jury that in estimating the amount of damages that plaintiff might recover, the jury might consider plaintiff’s diminished capacity, if any, to labor and earn a livelihood for the following reasons: The plaintiff is a minor. The evidence shows he was living with his mother at the time of the injury, and still is. She is therefore entitled to his earnings during minority. That his father is dead, and that his mother has now a suit pending against defendant for damages occasioned plaintiff from the same accident.”

*536The part of the charge complained of, considered with relation to an adult seeking to recover for an injury to himself, would be strictly correct, but in the case in which it was given the court should have limited the liability for damages resulting from diminished capacity to labor caused by the injury to the period after the appellee’s majority, for until that period was reached the appellee would not be entitled to the proceeds of his own labor and would not be entitled to damages on account of .his diminished capacity. We are of the opinion, however, that we would not be authorized to reverse the judgment on account of this charge, even if it was not the duty of the appellant to have asked a proper charge in this respect, for there is no complaint made that the verdict of the jury was excessive. The only effect the charge could have had would have been to cause an excessive verdict, and it in no way had a bearing on the question whether the appellant was liable at all under the facts.

The controversy in the lower court, and here, is as to whether, under the facts, the appellant is liable at all.

The appellee was injured while attempting to cross the track at a path leading from the thickly populated part of the city of Denison to houses on the opposite side of the railway, which seems to have been frequently used by many people for a considerable period without objection. In such a case, as said by the Supreme Court of Pennsylvania, “ If an owner of property has been accustomed to allow to others a permissive use of it, such as tends to produce a confident belief that the use will not be objected to, and therefore to act on the belief accordingly, he must be held to experience his rights in view of the circumstances so as not to mislead others to their injury, without a proper warning of his intention to recall the permission.”

Whether, in view of the facts attending the use of the path, the railway company used that care which it ought to have used to guard persons from injury, was a question for the jury, and there was evidence tending to show that no lookout ahead of the train was exercised, though upon this point there was a conflict of evidence; but that there was any warning given of the approach of the train other than such as would result from its movement, is not claimed.

Although it might not be the statutory duty of a railway company, at such a place, to give the signals of an approaching train as is required at a public crossing, yet the failure to *537do so might be negligence. The engineer stated that he was looking ahead, and that he did not see the boy at all, but from the other evidence in the case the jury may have come to the conclusion that his statement was not true. The degree of care that should be used must be proportioned to the nature of the act performed, the place where performed, and the extent of danger and injury likely to result from a failure to use due care in avoidance of injury to others. We can not say, under the evidence in this case, that the employes of the appellant . used that care which the law requires.

Opinion delivered April 20, 1888.

This case was before this court at a former term, when a judgment in favor of the appellee was set aside, on the ground that it appeared from the evidence that the injury resulted from the contributory negligence of the appellee. Another jury has passed on the case, under evidence tending to relieve the appellee from the charge of contributory negligence, which was not before the jury on the former trial. As the case now stands, were the appellee an adult, it seems to us the verdict should be again set aside; but we can not say that the same degree of care should be exacted of a boy of the appellee’s age as must be of an adult. Whether he used that care in attempting to cross the track, and in ascertaining the danger that attended his act, incumbent on one of his age, was a question submitted to the jury by a charge which, on this point and all others bearing on the question of the liability of the appellant at all, was as favorable to the appellant and as exacting on the appellee as the facts would have warranted.

Two juries have passed upon the facts, twice have judges of the district court refused to grant new trials, the appellee was of tender years, there was evidence from which the jury might find that the employes of the appellant did not use that care which, under the circumstances, should have been used, and the jury were in position to determine whether the acts of the appellee were, in one of his age, the exercise of such care as such a person should exercise.

The rules by which this court is necessarily governed in setting aside verdicts, on the ground that they are contrary to the evidence, have been too often announced now to require repetition. We can not see our way clear to the granting of such relief in this case, and the judgment must be affirmed.

Affirmed.