I. & G. N. R'y Co. v. Ormond

Robertson, Associate Justice . Whether James Ormond, after he had alighted from the car, in which he, his wife, child and nurse had been transported from Palestine to Jacksonville, was guilty of any negligence in going forward to the box-car containing his household effects, is a mixed question of law and fact, and in the clear and well arranged charge of the court below was properly submitted to the jury. The jury were authorized under the testimony to conclude, as from the verdict they must have done, that Ormond had no receipt, bill of lading or check for his goods, and whether it was proper, under all the circumstances, for him to go to the car containing his effects and see in person that they were unloaded, it was the province of the jury to determine. What he should have done, under the circumstances, is what a prudent man would have done in the same situation; and what was done, and what should have been done, were both questions for the jury. T. & P. R’y Co. v. Murphy, 46 Tex., 356. The 'authorities all agree that plaintiff could not recover if the negligence of James Ormond proximately contributed to his death. This expression does not convey to the unprofessional mind a sufficiently definite idea. The act of negligence proximately contributes to the injury when, without the act of negligence, the injury would not have been inflicted. Wood’s Master and Servant, p. 638. The court below did not err in the general charge, in submitting this issue, in eschewing the technical expression. The charge correctly lays down the rule in language intelligible to the jury. As much of the special charge quoted in the fifth assignment of error as ought have been given was embraced in the general charge. The effect of the charge requested was, that if Jas. Ormond’s fall, caused “ by accident or misadventure,” contributed to his death, the plaintiff could not recover. Without the fall the injury would not have occurred. But if he was not at fault in falling, the negligence effecting his death is not excused. This is the theory of the general charge and is correct. The sixth, seventh and eighth assignments of error relate to the insufficiency of the evidence to sustain the verdict. The testimony is too voluminous to be discussed in much detail. It must suffice to say, that there is a conflict of testimony on every material point. Whether Jas. Ormond was drunk or sober, and whether he had a receipt, bill of lading or check for his goods, were questions pertinent in determining whether he was guilty of negligence in entering the car from which he fell; whether the car containing his goods should have been on the main track or the switch; whether the [490] gang-plank should have been used in unloading; whether it was prudent to allow the fireman to run the engine back on the switch whilst the car on the main track was being unloaded; whether the engine was thus run too fast; whether the bell was rung or other proper signals given, were all questions upon which there was more or less conflict of testimony. The jury have solved these questions by a finding, the logical result of which is, that Jas. Ormond was properly in the car he fell from, and that the engine and truck, contact with one of which produced his death, were improperly there at all, or there without sufficient warning, or in too rapid motion. To sustain these conclusions there is neither such want of evidence nor such decided preponderance against them as will justify the reversal of the judgment on these assignments of error. The appellant does not complain of the charge of the court below on the measure of damages, nor does the record disclose any influence exciting the jury to passion or prejudice. A former jury in the same case rendered a larger verdict and another judge refused to disturb it. R’y Co. v. Ormond, 62 Tex., 274. Taking into consideration the age, life, expectancy and earnings of the deceased at the date of his death, an easy calculation, such as that suggested by appellant’s counsel, would yield a much smaller sum than that awarded by the verdict. But the additional experience and skill which may have been acquired in some of the years of life he was deprived of would increase his wages, and this element of uncertainty deprives us of the arithmetical standard suggested in appellant’s brief. And in the absence of any standard, where the record or the very size of the verdict does not show passion or prejudice, we cannot determine that the verdict is clearly excessive. Execution is properly awarded in favor of appellee for the whole amount of the judgment, but the court ought to have ordered that the sheriff should retain one-half of all moneys collected, outside of the costs, until a guardian of the estate of John Ormond, a minor, has qualified, and should pay over the sum retained to such guardian. The judgment of the court below will be reformed in this particular, and in all else it will be affirmed. Judgment eeeoemed. [Opinion delivered October 16, 1885.]