Galveston, Harrisburg & San Antonio Railway Co. v. Worthy

*465 BROWN, Associate Justice. C. A. Worthy and her children sued the railroad company for damages on account of the death of their husband and father, which was admitted to have been caused by the negligence of the defendant’s employes; but it was claimed that such employes so guilty of negligence were the fellow-servants of the deceased, who was also an employe of the same railroad company at the time he was killed. The deceased was an engineer upon a train of defendant, and at the time he was killed was running an engine attached to a freight train. When approaching a station his engine ran into a flat car which was upon the main track, through the negligence of those operating another train of defendant. Judgment was rendered against the defendant for $12,500, which was affirmed by the Court of Civil Appeals. A number of objections are presented to the judgment which we do not deem it necessary to notice, as they were properly disposed of by the Court of Civil Appeals. One of the errors assigned in this court, however, demands examination, and requires the reversal of the judgment in this case. The petition alleged, in substance, that H. C. Worthy, deceased, was an experienced railroad engineer, and at the time of his death was earning $175 per month, and capable of continually earning said sum; that he was 48 years of age, and at the time of his death the plaintiffs, his wife and children, were wholly dependent upon his labor for a support and maintenance. The evidence sustained the allegations of the petition. The trial court gave to the jury the following instruction: “In case you find for plaintiffs, you may give them such damages as you may think proportioned to the injury resulting to plaintiffs from the death of H. C. Worthy, and you must state in your verdict how much damages each plaintiff is entitled to.” While it has been held, that the statute directing the court to charge the jury is not mandatory, that is, that a failure to charge unless requested is not reversible error, it is nevertheless proper for the trial court in this character of cases to give to the jury instructions as to the proper measure of damages. Railway v. Le Gierse, 51 Texas, 203; Railway v. Nixon, 52 Texas, 19; Railway v. Ormond, 62 Texas, 274. It is well settled in this State, that under articles 2899 and 2909 of the Revised Statutes, the plaintiffs are entitled in this character of action to recover the pecuniary value of the life lost; in other words, the verdict should be for a sum that would compensate for the pecuniary injury sustained by reason of the death. March v. Walker, 48 Texas, 375. The charge in this case (quoted above) copies from one article of the statute, that the jury may assess such sum as they might “think proportioned to the injury,” but ignores the other article, which confines the right of recovery to actual damages, as well as the settled con *466 struction of the article, to the effect that the sum found' must be a compensation for the pecuniary injury sustained. It does not announce the law of the case, but on the contrary, in effect informs the jury that the sum to be found is subject alone to their own determination, not even confining them to the evidence in the case. This is not a case in which the charge given is defective in omitting something which should have been included, but it is positively erroneous, because it announces a proposition that is not correct as matter of law. It is said by the Court of Civil Appeals, in its opinion, that this court has, in Railway v. Smith, 84 Texas, 351, modified the cases of Railway v. Le Gierse, Railway v. Mxon, and Railway v. Ormond, cited above; but in that case the issue was as to .the value of stock killed, and the court by its charge confined the jury to the sum shown by the evidence. It is a case very different in character from this, and there was no probability that a jury might consider anything other than the value of the stock; while in this, the very nature of the case, and the injury, would be calculated to lead a humane man, uninformed as to the law, to the consideration of those things which the law does not permit. Counsel cite the case of Railway v. Hansom, 22 Southwestern Reporter, 764, as being an authority to sustain this charge; but in that case the court instructed the jury to find a sum that would be “a fair compensation ’’for the loss. The charge in this case does not give even the idea of compensation as a guide to the jury in determining the amount of their verdict. Our court has gone to the extreme limit in sustaining charges somewhat similar to this, but there is no case in which a verdict has been sustained upon a charge so entirely without limitation upon the power of the jury as is this. The error of the charge is made more apparent by the court’s refusal to give the following charge, asked by the defendant’s counsel: “If the jury find for plaintiffs, in estimating the amount of damage the jury are confined to the consideration of the money value of the life of deceased, H. C. Worthy, to the plaintiffs, and the jury can not consider the loss of the society and the advice of the deceased to plaintiffs.” It is said that the charge asked and refused ought not to have been given, because it requested the court to charge the jury that plaintiff could not recover for loss of the ‘ ‘ society ” and “ advice ” of the deceased. It is admitted in the argument that society is not a proper subject to be considered by the jury, and it is claimed that there was no evidence as to advice and no issue as to either, and therefore the charge was properly refused. By law the plaintiffs could not recover for loss of the society of the father and husband, and under the pleadings of plaintiffs they could not recover for loss of advice and counsel. Under *467 the charge given by the court, if the jury thought that they were proper subjects for their consideration, they might have included either or both in determining the amount of their verdict. Under the circumstances, it was proper for the defendant's counsel to guard against an error into which the jury was liable to fall on account of the general character of the charge of the court, which could be done only by asking a special charge eliminating those matters not proper to be considered. The charge asked and refused was correct with reference to this case, and the charge of the court without explanation or limitation was erroneous; and for the errors in giving the one and refusing the other, the judgments of the District Court and Court of Civil Appeals is reversed, and this cause is remanded to the District Court for trial in accordance herewith.' Eeversed and remanded. Delivered January 28, 1895. Justice Denman did not sit in this case.