67 Tex. 238 | Tex. | 1887
This suit was brought by appellee to recover of appellant, under the provisions of Title 53, of the Revised Statutes, damages for an injury resulting in the death of her husband. It is alleged in substance that the injury was caused by the carelessness of an engineer—one Sunburg; that he was negligent and incompetent, and that appellant’s officers and agents did not exercise due care in selecting and employing Rim as engineer.
According to the provisions of the title cited, the widow and •other beneficiaries can only recover when the injury is “ of such a character as would, if death had not ensued, have entitled the party injured to maintain an action for such injury.” (Rev. Stat., art. 2900.) The evidence shows that, at the time the accident occurred which resulted in the death of the husband, he was employed as a brakeman by the railroad company, and was engaged in the performance of his duties as such. It follows that the appellee can not be permitted to recover on account of the negligence of the- engineer—the fellow servant of the deceased— unless a want of due care on the part of the company in employing him be show.n by the evidence.
There was some evidence adduced on the trial tending to show that the engineer was either reckless or unskillful on this partic
This is the substance of the whole testimony upon the subject of the care exercised in the selection of Sunburg as engineer. From this it appears that when he was sent to take charge of the switch engine at Orange; the master mechanic, whose duty it-was to select these employes, had reason to think that he had served as fireman the usual period tó fit him for the position of engineer; that he had served for some time as engineer and that, no fault had been found with him.
We think that the evidence upon the question of the negligence of the company in employing Sunburg as engineer does nót warrant the verdict of the jury and that the court below erred in not setting aside the verdict and granting a new trial.
The assignment to the effect that the judgment is erroneous because it is rendered for the benefit of appellee and her minor child, Beulah 0. Berry, is not well taken. The statute expressly provides that any one of the parties entitled to damages in such
Evidence of the declarations of the deceased made after he was removed from the place of the accident to his house, were admitted as a part of the res gastes, over the objection of defendant, and an exception was taken, which appears in the statement of facts. The ruling of the court not having been assigned as error, we do not deem it proper to consider the question.
Because the verdict of the jury is not supported by the evidence, the judgment is reversed and the cause remanded.
jReversed and remanded.
Opinion delivered January 18, 1887.