87 S.W. 328 | Tex. | 1905
Margaret McVey brought this suit in her own behalf and for the benefit of her minor children to recover of the plaintiff in error damages for the death of her husband, who was also the father of the children. His death was alleged to have been caused by the negligence of the servants of the defendant corporation. She recovered a judgment in the trial court for herself and the other beneficiaries of the action — which judgment was affirmed upon appeal.
We are of opinion that the judgment should be reversed and the cause remanded for error in the charge of the court as to the measure of damages; and since the other questions were correctly disposed of in the able and elaborate opinion of Chief Justice Fisher, it would be a profitless task to state the case in full or to discuss the questions of which a correct disposition has been made by the Court of Civil Appeals. We shall therefore in the main confine our remarks to a discussion of the question of the correctness of the instruction of which mention has just been made.
The deceased was a section foreman working for a salary of $50 per month and was, at the time of his death, fifty-two years of age with a life expectancy of a little more than nineteen years. When he returned home from work he assisted his wife in the performance of her household duties. The verdict of the jury awarded a recovery in the aggregate of $20,000, apportioned $8,000 to the widow and $4,000 to each of the three children.
The charge under consideration is as follows: "If you find from the evidence and under the charges of the court, for the plaintiffs, you will assess their recovery of damage at such amount, if paid now fully compensate them for the actual damages, if any, sustained, by them, as shown by the evidence, and such as is fairly proportioned to the injury sustained, if any, but you will not allow the plaintiffs anything by way of solace for the death of said Edward McVey, or for any sorrow or anguish suffered by them as result of such death." Our statute which gives a right of recovery for injuries resulting in death provides, among other things, that "the jury may give such damages as they may think proportioned to the injury resulting from such death; *32
and the amount so recovered shall be divided among the persons entitled to the benefit of the action, or such of them as shall then be alive, in such shares as the jury shall find by their verdict." (Rev. Stat., art. 3027.) There could hardly be a statute more vague in its terms than this. It is, however, settled by our decisions, that the damages which may be recovered under the statute are such pecuniary benefits as the plaintiff had a reasonable expectation of receiving from the deceased, had he lived. (City of Galveston v. Barbour,
When we granted the writ of error we were inclined to think that the court erred in refusing to give the third special instruction asked by the plaintiff in error and we now think that if, as claimed by plaintiff in error, "it appeared by the uncontroverted evidence that Edward McVey knew of the approach of defendant's train to the place of collision with the push car," the charge should have been given. But the only testimony upon the point tending to show his knowledge, so far as has been pointed out to us, was that of Isam Tisdale. He was the only person who was with McVey at the time of the accident and who testified upon the trial. His testimony which tended to show McVey's knowledge of the approach of the train, was that "McVey gave a command to hurry up and get the ties off the push car. He said the train was coming." It does not necessarily follow from this that McVey either by having seen or heard the trait was aware of its immediate approach. He knew that the train was due there and would in all probability pass very soon; and he may have relied upon the sound of the whistle at the whistling post to give him warning in time to clear the track. What he meant by the remark was a matter for the determination of the jury.
The question of the excessiveness of the verdict and of our power to reverse the judgment on that ground need not be decided upon the determination of this writ of error.
For the error pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded. *34