Southern Traction Co. v. Dillon

[699] RAINEY, C. J. Appellee Dillon was traveling along a public road in Hill county, driving two mules bitched to a covered wagon, two lads accompanying him in the wagon, one his son 9 years old and the other about 13 years of age. While going across the track of the Southern Traction Company the wagon was struck by a car of said company, which collision resulted in Dillon’s legs being broken, his son being killed, and the other lad being injured. Dillon instituted this suit against the traction company to recover damages for the injuries to himself and for the killing of his son. Defendant answered by general denial and specially contributory negligence. Special issues were submitted to a jury, and upon return of answers thereto judgment was rendered for appellee. Upon the trial of the case appellee, while testifying, shed tears, and on cross-examination he was asked this question: “All right, you know that the jury in passing upon the Buford Owens case, a companion case to this, in which all of the facts and circumstances detailed by you at this time were detailed by you on that trial, and in passing upon that case the jury last week returned a verdict, that is, the jury trying that case returned a verdict on Monday of this week, stating that you were guilty of negligence in going upon the crossing and the track at the time you were injured?” which was objected to because immaterial and irrelevant, and said objection was sustained. We find no error in this action of the court. It was not proper for him to testify that he knew the jury in the Owens Case, a companion chse which had been previously tried, had returned a verdict that he was guilty of negligence in driving upon the track, as it in no way contradicted any former statement made by him. Besides, there was testimony admitted which showed that appellee did not cry when being examined, and in detailing the circumstances of the accident on two former occasions. What the verdict in the Owens Case was was not a relevant matter for consideration of the jury trying this case. Complaint is made of the court’s charge in the submission to the jury of the question of negligence of appellant in the speed of its car, and it being the proximate cause of the injury; also in failing to sound the whistle at the proper time and place in approaching the crossing; which issues were answered in the affirmative. As to the speed at which the car was running, we think the submission was erroneous, as the testimony was not sufficient to warrant it. The car was running at the usual speed for it to run, and there was nothing at the time in the surroundings to indicate that the speed should be lessened, until appellee drove upon the crossing, when the car was nearly approaching the crossing. There was no plea or issue of discovered peril presented, and the speed of the ear did not become an issue. But the sounding of the whistle was an issue, and being answered in the affirmative was sufficient upon which negligence could be predicated, and the submission of the issue as to the speed of the car 'was harmless, and does not cause a reversal of the case. The issue of contributory negligence was raised by the evidence, and the court failed of its own motion to charge thereon. Counsel objected to this omission in time, and the court offered to give a charge on this question if counsel would prepare it. Counsel prepared seven propositions there, on, which were requested to be given, but the court only submitted two to the jury, Nos. 1 and 5. No. 1 was answered in the negative, and No. 5 only calling for an answer in the event No. 1 was answered in the affirmative, it was not answered by the jury. The appellant having pleaded contributory negligence, 'and that issue being raised by the evidence, the court should have presented the proper charge. Not having done so, the appellant would have a good ground for reversal without presenting special charges. Railway Co. v. Gant, 175 S. W. 745. But counsel did not stand alone upon his objections to the charge, but undertook to comply with the court’s request to prepare special charges on said issue. Having presented several and the court having given two, we are of the opinion that appellant cannot be heard to complain, although those given are not as full and specific as they should have been. Complaint is made of the court’s charge on the measure of damages, which charge is as follows: “Question No. 6. ‘What amount of money if paid now, in cash, would compensate J. A. Dillon for the damage, if any, sustained by him on account of the death of the son, Estrelle Dillon, and for the injuries, if any, sustained by him as a direct and proximate result of said accident? ’ ‘In estimating the amount of damages, if any, which you may find for J. A. Dillon, you will take into consideration only the following elements: The physical and mental pain, if any, suffered by the plaintiff, J. A. Dillon, and any lessened capacity to labor and earn money on the part of the said J. A. Dillon, if any, as a direct and proximate result of the injuries, if any, received by the plaintiff at the time of said accident, and the net value of the services of said Estrelle Dillon from the date of the said accident until he should have reached the age of 21 years.’ ” One objection is to that part of the charge which relates to the lessened capacity of ap-pellee to labor and earn money. The appel-lee submits thát the impairment of earning capacity may be inferred by the nature of the injuries, in the absence of express evidence. The evidence shows that appellee, six months after the accident, testified as follows: “I will be 42 years old my next birthday. Prior to this accident there was not anything the matter with me; I was able to work and [700] did work every day, and before I was injured I was making from five to seven and eight dollars á day. I was hurt on the 2d day of last September, and since that time I have not done anything or earned any money. ⅜ * * When the car struck the wagon it killed my little boy and broke my leg and cut my head up there and skinned me all over. It broke my left leg right above the ankle and skinned my head up here about my left eye; cut my left eyebrow in two' twice. After the injury, we were carried to Milford, and were then brought home in Hills-boro something near 8 o’clock that night. I was confined to my bed after that and, was under the treatment of Dr. Brian and Dr. Edwin Vaughan for about two months, I think. There was a month and two days that I didn’t turn over, and then there was for quite awhile that I was in the bed then, and then I got to where I could sit up some, and I don’t remember just how long I was in the bed. During that month and two days I suffered a right smart pain and could not sleep at night and I suffered from mental worry.” It is to be noted that the charge does not place any time or limitation in regard to the lessened capacity to earn money which may exist, and it leaves the jury to assess dam-, ages in the future on lessened capacity. The evidence does not show that appellee’s injuries were permanent, or what his future condition would be from the injuries. We agree with the contention of appellant that when there is evidence showing the capacity to earn money is lessened permanently such a charge would not be objectionable, but the evidence fails to make such a showing, and therefore we hold that the charge is error. Railway Co. v. Choate, 159 S. W. 1058; Railway Co. v. Spencer, 55 Tex. Civ. App. 456, 119 S. W. 716. The two cases above cited were cited by appellee to support his contention, but in the Choate Case, a charge was approved which limited the existence of incapacity to earn money “as long as such diminution, if any, shall exist, that was the direct and proximate result of the negligence, if any, of the said defendant.” This charge placed a due limitation upon the existence of such incapacity, which the charge in this ease does not do. In the Spencer Case, on this point the evidence showed the injuries were permanent, and the charge was proper as to future damages as to lessened capacity. There is also objection to said charge as to the contributions that the boy would have made to appellee, had he not been killed. The charge fails to tell the jury, in estimating the value of the son’s services to the appellee, to consider the expense that appellee would probably incur on his son’s account for the period of his minority, hut the charge is so worded that the jury might infer what the services for the full time would he worth, and allow such value if now paid in cash. The expression in the charge, “net value of the services,” is not explained by the court, and there is no explanation from which the jury aré informed of what element is to be deducted from the value of the services that might he rendered. Railway Co. v. Morrison, 93 Tex. 527, 56 S. W. 745; Traction Co. v. White, 94 Tex. 468, 61 S. W. 706. For 'the errors indicated we reverse the judgment and remand the cause.