46 Tex. 535 | Tex. | 1877
The act of February 2,1860, authorizing the heirs, legal representatives, or relations of deceased persons to sue for and recover damages where the death of such persons has been caused or occasioned by the negligent, culpable, or wrongful act of another, as was decided by the majority of the court at its last session at this place, in the case of the Houston and Texas Central R. W. Co. v. Bradley, guardian, is in force and unrepealed by section 30, article 12, of the Constitution of 1869. Appellant’s right to maintain the action must, therefore, be conceded, if an action could have been maintained against appellee by her husband, for the alleged negligent, culpable, or wrongful acts changed to have occasioned his death, if death had not ensued. To determine whether an action could have been maintained by appellant’s husband, John J. Price, if death had not ensued from the alleged unfitness, gross negligence, or carelessness of appellee’s servants and agents, it is necessary for us to determine the general proposition, whether the master is liable for injuries sustained by his servant through the wrongful act, negligence, or default of a fellow servant.
Although the question has not been heretofore authoritatively ruled upon by this court, still it has been so thoroughly discussed and repeatedly decided by the courts of Great Britain, Belaud, and almost every -State of America, with the same result, that it can hardly now be regarded as presenting an open question. It would be an idle consumption of time for us to enter into an elaborate consideration of the question, or undertake to vindicate the conclusions reached
To rebut this overwhelming array of authority, we are referred by counsel on tire opposite side of the question, and there has otherwise come to our notice, only the decisions of the Supreme Court of the States of Kentucky and Ohio, and an opinion of Lord Cockburn, as regards the law of Scotland on the subject. But these decisions, we think, cannot be justly regarded as of any great weight. The leading case on the subj ect, in Kentucky, is that of The Louisville and Nashville R. R. Co. v. Collins, 2 Duval, 114. The subsequent decisions (4 Bush, 507, and 6 Bush, 579) merely follow it. It- cannot be questioned, that in this case Judge Bobertson defends the propositions, upon which he insists with his usual vigor of
There being no error in the judgment, it is affirmed.
Affirmed.