Case No. 1089 | Tex. | Oct 24, 1882
Lead Opinion
It is not proposed to discuss the various propositions of counsel for appellant, based on objections to the charge as given, or the refusal of charges asked. In so far as these propositions deny that a railroad company owes any duty to persons on its track, they assert a principle which this court has heretofore refused to adopt, and which is believed to be generally, if not universally, denied by the courts when applied to the case of an infant trespasser. H. & T. C. R’y Co. v. Sympkins, 54 Tex., 620; Pierce on Railroads, p. 332 et seq.; 2 Thompson on Neg., p. 1180 et seq. In so far as they assert that a railway company is only required to use ordinary care to discover persons on its track, they but reiterate what was sufficiently embodied in the charge. The objection that the charge is upon the facts of the case, or that it assumes facts improperly, is not borne out by the record. Taking in connection the charge of the court and the instructions asked by defendant and given, it appears to us that the defendant has no just or legal cause of complaint as to the charge. If the court might properly have explained the meaning of the expression “ proximate cause,” as used in the charge, the defendant is not in a condition to avail itself of a mere defect, or want of completeness, which it should-have sought to remedy at the time by asking an appropriate instruction.
We remark that throughout the charge of the court the negligence of the mother is imputed to the infant plaintiff. As presented to us, the case requires no expression of opinion on this mooted legal question, nor on the question how far the negligence of a person left by the mother in charge of the infant, would also be imputed to the infant. The appellant got the full benefit of a charge going as far as it asked as to the effect of contributory negligence by the mother, and the court was not asked to go further and instruct the jury to impute to the child the negligence of its aunt, who was left in charge of the child by its mother.
This brings us to the question of fact whether the verdict is clearly contrary to the evidence.
As to the amount of the verdict, while we think it large, we do not think it such as to justify our setting it aside. The matters to which the charge of the court invited the attention of the jury in estimating the amount of damages were proper for their consideration. That the permanent loss of her arm, amputated as it was at the shoulder .joint, would reduce her capacity to earn money, would seem to be an inference which the jury could draw for themselves, without the aid of witnesses. We see nothing in the charge on this point calculated to mislead.
Having found no error justifying a reversal, it is ordered that the judgment be affirmed.
Affirmed.
Dissenting Opinion
I feel constrained to dissent from the decision of the majority of the court in this case.
It is shown that the mother of the child voluntarily resided at the place at which the accident happened, and that it was within a few feet of the track of the road; that she knew of the approaching train, and recollected at the time that the child might be injured. Under these circumstances, great care was due on the part of the mother. But without expressing any opinion whether the contributory negligence of the mother should be imputed to a child of such tender years as the plaintiff, I however think that the judgment should be reversed on other grounds.
There is a great preponderance of evidence against the verdict. It cannot be questioned but that the plaintiff ivas wrongfully on the track, a fact which the employees on the train were not bound to anticipate would happen, further than to use ordinary care to discover possible danger. The train was running at a reasonable rate of speed. The only eye-witnesses to the fact, the engineer and fireman, swore positively that they Avere at their post of duty and on the lookout, and that as soon as they saw the danger they used extraordinary efforts to avert it and save the child, even at the risk of their own lives. That nothing Avas left undone which they could have done. The circumstantial evidence does not necessarily conflict with their positive testimony, Avhich, under the circumstances, should be entitled to very great weight. The evidence shows that the child’s tracks were obliterated at the place where the engine came in contact with her. In cases Avhere there is a great preponderance of evidence against the verdict, I do not understand the true rule to be that the verdict should be upheld because, perchance, there might be some evidence upon which the jury might have found; but that the testimony to support the verdict should be so reasonably certain and sufficient as to shoiv that the jury did not err.
I do not think that the verdict and judgment in this case were warranted by the testimony. I am further of opinion, that, under the circumstances, the verdict was excessive.