84 S.W. 247 | Tex. App. | 1904
Appellees, plaintiffs below, sued appellant railway company to recover damages alleged to have resulted to them from the death of their minor son, Thomas, through the alleged negligence of appellant.
Defendant answered by general and special demurrers, general denial and contributory negligence on the part of Thomas Shiflet, the minor son. Upon trial judgment was rendered for plaintiffs, and the railway company prosecuted this appeal.
The case has been tried four times in the District Court. This is the third time it has been before the Courts of Civil Appeals. See 44 S.W. Rep., 918 and 56 S.W. Rep., 697, and once passed upon by the Supreme Court,
1. The court in its charge to the jury submitted the question whether or not Thomas Shiflet was of sufficient intelligence and discretion to understand and appreciate the danger of being on the railroad track at the time and place of the injury. The evidence on this issue is the same as when before the Supreme Court (
But it is suggested by appellees that the case is cast upon a different line, in that the issue of deceased being on the track as a licensee was submitted, which was not done on the former trial; and we infer from the argument of counsel that they have this idea from the language used in the case in
If said language is susceptible of such a construction we do not think the court intended to so hold, for if it did it would have been very easy to have so stated. That opinion distinctly holds that there was no evidence authorizing a charge on the want of discretion. The issue of contributory negligence is clearly raised by the evidence, and the submission of a charge on the question of discretion partly eliminated the issue of contributory negligence, for the jury may have found the want of discretion, and if they did so find, contributory negligence was eliminated.
2. The court also erred in permitting the introduction of testimony to the effect that Thomas Shiflet did not have sufficient intelligence to appreciate and realize that if he sat down upon the track while weary and tired at night he might go to sleep, and also in submitting that as an issue to the jury. In St. Louis S.W. Ry. Co. v. Shiflet,
3. The court charged on the measure of damages as follows: "In case you find for the plaintiffs you will assess the damages at such sum of money as you believe from the evidence will be equal to the present money value (if paid now all at one time) of such aid as plaintiff had a reasonable expectation of receiving from the deceased, Thomas Shiflet, after he was twenty-one years old, if he had lived, and the reasonable value of the services of said minor until he arrived at 21 years of age."
This charge is in effect the same as the special charge discussed in Merchants P. Oil Co. v. Burns,
For the reasons stated the judgment is reversed and cause remanded.
Reversed and remanded.
The motion for rehearing will be overruled.
In the last opinion the Supreme Court made the following comment, viz: "We take occasion to add that this is the second certificate which has been sent to this court in this case; and that as we think the practice of sending up successive certificates upon the same appeal is not to be commended." This gentle reprimand is calculated to make the impression that this court, at least, was in the habit of such practice. Such, however, is not the case. This instance is the first, so far as we remember, and we felt justified in recertifying the question, as it was one about which there was some difference of opinion among the members of this court. We thought the first certificate was sufficient, but the Supreme Court was of a different opinion. Had that court, before acting upon the certificate, intimated to us that it was not sufficient the defect would have been supplied. As the question was not answered and it embraced the main point upon which we based a reversal of the case, and believing an answer of the Supreme Court would shorten litigation, we certified the question a second time. *546