Berry v. Texas & New Orleans Railway Co.

Henry, Associate Justice. The original petition in this case was filed in 1882 by appellant in behalf of herself and minor child to recover of appellee damages for the death of Clarence B. Berry, husband of one and father of the other. The cause of action as stated in the brief of appellant is that the said Clarence B. Berry was in the year 1881 in the employ of the defendant railroad company as a brakeman at Orange, Texas; that at the same time one Charles Sunburg was in the employment of said corporation as an •engineer; that Sunburg was an incompetent and untrustworthy engineer and known to be such by his employer; that in the year 1881, while said Clarence B. Berry was in the discharge of his duty as brakeman, the corporation by said Charles Sunburg carelessly and negligently propelled its cars and left an open ditch on its side track so that while attempting to make a coupling of cars said Berry iell into the ditch and was run. over by the cars, causing his leg and hand to be crushed, from the effects of which he died. The cause was tried at the spring term 1888 of the District Court, resulting in a verdict and judgment for the defendant, from which plaintiffs prosecute this appeal. There is in the record a statement of facts which need not be considered further than to state that it fails to disclose the existence of any relationship between deceased and either of the plaintiffs, or that any damage to anybody resulted from the death of Berry. There is no evidence on these issues. As to the ditch and engineer the evidence fails to disclose any negligence with regard to the ditch and tends only to establish that the engineer was competent and skillful and guilty of no negligence. The plaintiffs applied for a continuance, which the court denied. This ruling is assigned as error. Application for the continuance was made and sworn to by plaintiffs’ attorney. There is nothing in the record showing whether the case had ever been continued before this application was made. The ground stated is the want of the testimony of Mrs. M. R. Parker (plaintiff), who it is stated resides in Chambers or Liberty County, Texas. It is stated on information and belief that she had been in attendance at the different terms of the court since her suit was filed. Extracts from an undated letter from her to her attorney are included in the application, showing that her absence from the trial, which was anticipated, would be owing to the sickness of her child and coplaintiff. It is stated that the evidence of the plaintiff is material, but what it would be is not disclosed further than that in addition to her written evidence on a former trial she would testify “ that there was dissatisfaction among the employes of the company about Sunburg’s being placed in the position of engineer, and that some of them, her husband in the number, had declared they would abandon the service of the company if he was not [624] discharged.” Also that the declarations of Berry made shortly after his. injury as to the cause of his injury would be proved by this witness., What the declarations were is not stated. The application also shows that in 1882 attachments were sued out by plaintiffs for a number of witnesses residing in Orange County which were returned by the sheriff as executed “by summoning said witnesses.” The application states that the evidence of said witnesses is material for plaintiffs, and that they were not in attendance then. It fails to disclose what facts the witnesses were expected to testify to. What the written evidence of the plaintiff on a former trial alluded to in the application for continuance was is not disclosed by the application and only appears as part of appellants’ assignment of errors. As. it appears there it does contain some matters of substance that would have been useful if developed earlier in the proceedings. In an amended motion for new trial it is shown that another writ issued for the attached witnesses was executed in 1883 by arresting the witnesses. This was not shown in the application to continue. The application to continue is defective in so many particulars that it is useless to particularize them or discuss it. Objections to the admissibility of certain evidence offered by the defendant were made by plaintiffs. The objections were not well taken. The result to the plaintiffs would not have been different if all the evidence of the defendant had been excluded. Other errors insisted upon by appellants are to the effect that the court refused to allow plaintiffs’ counsel to read the authorities relied on by him, and that the court refused to instruct the jury on the law of the case, but ordered a verdict for defendant, stating “in the hearing of the jury” that plaintiffs had failed to prove their case. In fact the record fails to. show that the judge charged the jury at all. Ho bill of exceptions was; taken showing that he made the remarks attributed to him. We do not understand that the law requires a district judge to charge' the jury unless requested by one of the parties. If he does charge it should be in writing. Whatever error was committed in this respect it would not lead to a reversal unless it was apparent that it may have in juriously affected plaintiffs’ case. If under any circumstances a charge can be properly omitted this seems a proper case for such omission. Ho charge would have been proper that did not direct a verdict for the defendant. / The judgment is affirmed. Affirmed. Opinion February 8, 1889.