119 S.W. 872 | Tex. App. | 1909
This is an action by English Barnes, a minor, by his father, W. T. Barnes, as next friend, to recover damages against the Stamford Oil Mill Company for personal injuries, and is a companion case to cause No. 6081, this appellant versus Barnes, this day decided in an opinion by Mr. Justice Dunklin, which opinion see for a fuller statement of the case. There was a trial before a jury, resulting in a verdict for the plaintiff, from which the defendant has appealed.
Many of the questions raised on this appeal are disposed of by us in the case above referred to and need not be again discussed. We have reached the conclusion in this case, however, that the judgment must be reversed and the cause remanded for errors in the charge of the the court. In submitting the measure of appellee's recovery, the court instructed the jury as follows: "In case you find for the plaintiff, you will, in estimating his damages, take into consideration the proof, if any, showing mental and physical pain and suffering sustained by him in the past by reason of his injuries, and also any mental or physical pain he may sustain in the future resulting from such injuries, if any, and also any reduction of his power or capacity to earn money during the course of his life after he shall attain the age of twenty-one years, if any, and also any reduction of his power or capacity to pursue the course of life he might pursue after he arrives at the age of twenty-one years, but for such injuries." The complaint of this charge is that it is misleading and calculated to authorize the jury to allow a double recovery. That injuries which would affect appellee's power or capacity *422
to earn money during the course of his life after he shall attain the age of twenty-one years, might also, and perhaps necessarily, affect his power or capacity to pursue the course of life he might pursue after he arrives at the age of twenty-one years but for such injuries, seems apparent and is so decided in the cases of International G. N. Ry. Co. v. Butcher,
In Texas N. O. Ry. Co. v. McCraw, 43 Texas Civ. App. 247[
Complaint is also made of the following special charge given at the instance of appellee: "You are charged that if you believe from the evidence that the defendant had posted about its premises signs of 'no admittance' at the time of the alleged accident to the plaintiff, and you further believe that said signs did not apply and were not intended to apply to the customers of defendant who went upon defendant's premises to purchase cotton seed hulls, and you further believe that at the time of the alleged accident the plaintiff was upon the said premises with his brother to purchase cotton seed hulls, then you will not consider for any purpose the fact that defendant had such signs posted upon its premises, if any were so posted." The giving of this charge was error. It withdrew from the consideration of the jury a fact which they would have been authorized to consider in passing upon appellant's negligence, and especially appellee's contributory negligence, both of which were vital issues in the case.
We find no other errors in the record, but for those discussed the judgment is reversed and the cause remanded for another trial.
Reversed and remanded.