CAIRES, Chief Justice.
Charles C. Reichart and Charles G. Reichart are father and son. The father was the driver of a hose cart in the fire department of the city of Houston. The son was assistant foreman in the same company, and it was his duty upon an alarm of fire to mount the hose cart, which was driven by his father, and to proceed to the scene of the conflagration. On the occasion which gave rise to this litigation, an alarm having been given, the son mounted the cart beside his father, who held the reins, and the latter drove rapidly in the direction of the fire. It became necessary to cross the track of the Houston City Street Railway, and in attempting to do so the cart was overturned and the son was seriously injured. The son being a minor, the father, for himself and as next friend of his son, brought this suit against the street railway company to recover damages resulting from the injuries.
The gist of the action, as alleged in the petition, was that the defendant company had negligently constructed and maintained its track, in this respect, that the iron projected above the grade of the street so as to make it dangerous for vehicles to cross it. The defendant excepted to the petition, on the ground of the misjoinder of actions; and it would seem, that if the exception had been insisted upon it should have been sustained. But the record does not show that it was called to the attention of the trial court.
The defendant pleaded, among other things, contributory negligence. Hpon the trial there was a verdict and judgment for the father, C. C. Reichart, for $500, and for the son, C. G. Reichart, for $7500.
The court in the general charge instructed the jury, in effect, that if the hose carriage was overturned by reason of negligence in the construction or maintenance of defendant’s track, and that C. G. Reichart was thereby injured, and that the person in control of the carriage at the time did not and by the use of reasonable care under the circumstances could not have known of the condition of such track, or if, knowing of such condition, he used reasonable care to avoid the injury, they should find a verdict for the plaintiffs. Among other things, the jury was also instructed in the general charge, that “if the plaintiffs or the person in control of the carriage at the time knew, or with ordinary care under the circumstances could have known, of the defect in the track, or so knowing did not under the circumstances use reasonable care,” to find a verdict for the defendant.
After the general charge was given at the request of the plaintiffs, the court gave the jury the following special instruction: “That if the
tracks of the defendant, at the corner of Fifth and Washington streets, were in a bad and dangerous condition to persons passing over the same, and you believe that complaint of the dangerous condition of said tracks, if such was the case, was made to the defendant, or any of its authorized agents, and if said defendant, or its authorized agents, promised or agreed to repair said tracks, and if you further believe that such promise, or agreement, if any, was communicated to C. C. Beichart by some person authorized to do so, then you are instructed that said Beichart would have a right to rely on such promise, if any, ■ and if, while he was relying on the same, plaintiff was hurt or injured by want of reasonable care of the defendant, as in the court’s charge defined, then you will find for plaintiffs.”
This charge is assigned as error. There was evidence showing that the street commissioner and the chief of the fire department had notified the officers or agents of the defendant company of the dangerous condition of the track at the place of the accident; that there had been a promise on part of such officers or agents to repair the defect, and that the promise had been communicated to C. C. Beichart. It is not the case of a servant whose master has promised him to repair defective machinery. There was no contractual relation between either of the plaintiffs and the defendant. Knowledge on part of O. C. Beichart that the company had promised to repair the track was a circumstance to be considered by the jury in determining the question whether or not he used proper care in attempting to cross it. But his reliance upon a promise so made and communicated could not defeat the defense of contributory negligence, if as a matter of fact he did not exercise due care in endeavoring to pass the obstruction. We feel safe in saying, that it was not the intention of the learned trial judge to so charge. But the question for us to determine is, how might the jury have considered the instruction? The charge contains an independent proposition, and is complete in itself. It refers to no other instruction by which it is to be qualified. It tells the jury, in effect, that if tbe promise had been made and communicated, and if the father relied upon it, then they should find a verdict for both plaintiffs. It was well calculated to induce the jury to believe that it was the intention of the court that it should override all instructions given in reference to the defense of contributory negligence, and to make it their duty to find for the plaintiffs, notwithstanding that either or both of them had negligently attempted to cross the track.
But even if the jury had been told that under the facts stated they should find for the plaintiffs, unless they should believe that the plaintiffs were guilty of contributory negligence as elsewhere charged, the charge, we think, would have still been erroneous. The making of the promise and its communication to C. 0. Beichart bore only upon the question of his knowledge of the defect at the time he approached
the track. If he once knew of the defect, and had been induced by information such as a prudent man would have acted on to believe that it had been repaired, it would have been very much as if he had never known it. But would an ordinarily prudent man have relied upon a mere promise to repair? In other words, would he have assumed from such promise that the track had been repaired? This was a question of fact, and the instruction took it away from the jury.
C. C. Reichart, in the Court of Civil Appeals, remitted the judgment in his favor. The error, therefore, so far as it affects the recovery in his behalf, is immaterial. We concur, too, with the Court of Civil Appeals in holding that his negligence should not be imputed to his son; but do not concur in the conclusion, that the error was harmless as to the son. We can not say that if the jury had found C.
G.
Reichart negligent, the finding would have been without evidence to support it. The judgment must therefore be reversed.
Upon the measure of damages the court gave the following instructions: “If you find for the plaintiffs, consider (under the evidence) C. G. Reichart’s loss, if any, of time, and lessened capacity, if any, to earn money, up to the arrival of the age of 21 years, at his usual vocation, and expenses necessarily and reasonably incurred for medical attention and nursing, and for care as the result of such injury, if any, for which defendant is liable, and find such sum for the father, C. C. Reichart.
“You will also consider (second) O. G.
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CAIRES, Chief Justice.
Charles C. Reichart and Charles G. Reichart are father and son. The father was the driver of a hose cart in the fire department of the city of Houston. The son was assistant foreman in the same company, and it was his duty upon an alarm of fire to mount the hose cart, which was driven by his father, and to proceed to the scene of the conflagration. On the occasion which gave rise to this litigation, an alarm having been given, the son mounted the cart beside his father, who held the reins, and the latter drove rapidly in the direction of the fire. It became necessary to cross the track of the Houston City Street Railway, and in attempting to do so the cart was overturned and the son was seriously injured. The son being a minor, the father, for himself and as next friend of his son, brought this suit against the street railway company to recover damages resulting from the injuries.
The gist of the action, as alleged in the petition, was that the defendant company had negligently constructed and maintained its track, in this respect, that the iron projected above the grade of the street so as to make it dangerous for vehicles to cross it. The defendant excepted to the petition, on the ground of the misjoinder of actions; and it would seem, that if the exception had been insisted upon it should have been sustained. But the record does not show that it was called to the attention of the trial court.
The defendant pleaded, among other things, contributory negligence. Hpon the trial there was a verdict and judgment for the father, C. C. Reichart, for $500, and for the son, C. G. Reichart, for $7500.
The court in the general charge instructed the jury, in effect, that if the hose carriage was overturned by reason of negligence in the construction or maintenance of defendant’s track, and that C. G. Reichart was thereby injured, and that the person in control of the carriage at the time did not and by the use of reasonable care under the circumstances could not have known of the condition of such track, or if, knowing of such condition, he used reasonable care to avoid the injury, they should find a verdict for the plaintiffs. Among other things, the jury was also instructed in the general charge, that “if the plaintiffs or the person in control of the carriage at the time knew, or with ordinary care under the circumstances could have known, of the defect in the track, or so knowing did not under the circumstances use reasonable care,” to find a verdict for the defendant.
After the general charge was given at the request of the plaintiffs, the court gave the jury the following special instruction: “That if the
tracks of the defendant, at the corner of Fifth and Washington streets, were in a bad and dangerous condition to persons passing over the same, and you believe that complaint of the dangerous condition of said tracks, if such was the case, was made to the defendant, or any of its authorized agents, and if said defendant, or its authorized agents, promised or agreed to repair said tracks, and if you further believe that such promise, or agreement, if any, was communicated to C. C. Beichart by some person authorized to do so, then you are instructed that said Beichart would have a right to rely on such promise, if any, ■ and if, while he was relying on the same, plaintiff was hurt or injured by want of reasonable care of the defendant, as in the court’s charge defined, then you will find for plaintiffs.”
This charge is assigned as error. There was evidence showing that the street commissioner and the chief of the fire department had notified the officers or agents of the defendant company of the dangerous condition of the track at the place of the accident; that there had been a promise on part of such officers or agents to repair the defect, and that the promise had been communicated to C. C. Beichart. It is not the case of a servant whose master has promised him to repair defective machinery. There was no contractual relation between either of the plaintiffs and the defendant. Knowledge on part of O. C. Beichart that the company had promised to repair the track was a circumstance to be considered by the jury in determining the question whether or not he used proper care in attempting to cross it. But his reliance upon a promise so made and communicated could not defeat the defense of contributory negligence, if as a matter of fact he did not exercise due care in endeavoring to pass the obstruction. We feel safe in saying, that it was not the intention of the learned trial judge to so charge. But the question for us to determine is, how might the jury have considered the instruction? The charge contains an independent proposition, and is complete in itself. It refers to no other instruction by which it is to be qualified. It tells the jury, in effect, that if tbe promise had been made and communicated, and if the father relied upon it, then they should find a verdict for both plaintiffs. It was well calculated to induce the jury to believe that it was the intention of the court that it should override all instructions given in reference to the defense of contributory negligence, and to make it their duty to find for the plaintiffs, notwithstanding that either or both of them had negligently attempted to cross the track.
But even if the jury had been told that under the facts stated they should find for the plaintiffs, unless they should believe that the plaintiffs were guilty of contributory negligence as elsewhere charged, the charge, we think, would have still been erroneous. The making of the promise and its communication to C. 0. Beichart bore only upon the question of his knowledge of the defect at the time he approached
the track. If he once knew of the defect, and had been induced by information such as a prudent man would have acted on to believe that it had been repaired, it would have been very much as if he had never known it. But would an ordinarily prudent man have relied upon a mere promise to repair? In other words, would he have assumed from such promise that the track had been repaired? This was a question of fact, and the instruction took it away from the jury.
C. C. Reichart, in the Court of Civil Appeals, remitted the judgment in his favor. The error, therefore, so far as it affects the recovery in his behalf, is immaterial. We concur, too, with the Court of Civil Appeals in holding that his negligence should not be imputed to his son; but do not concur in the conclusion, that the error was harmless as to the son. We can not say that if the jury had found C.
G.
Reichart negligent, the finding would have been without evidence to support it. The judgment must therefore be reversed.
Upon the measure of damages the court gave the following instructions: “If you find for the plaintiffs, consider (under the evidence) C. G. Reichart’s loss, if any, of time, and lessened capacity, if any, to earn money, up to the arrival of the age of 21 years, at his usual vocation, and expenses necessarily and reasonably incurred for medical attention and nursing, and for care as the result of such injury, if any, for which defendant is liable, and find such sum for the father, C. C. Reichart.
“You will also consider (second) O. G. Reichart’s pain and suffering, if any, as the result of such injury, if any, and his loss of time, if any, and lessened capacity, if any, to earn money at his usual vocation, after arriving at the age of 21 years, and such sum, if anything, you will find for the plaintiff, C. G. Reichart, the son.”
These instructions are also assigned as error. At the time of the accident 0. G. Reichart, the son, was a minor, and at the time of the trial he was still under 21 years of age.' He testified upon the trial, and it is at least inferable from his testimony that his general health had been restored, so that he was capable of performing hard labor. He was permanently crippled, however, in his lower limbs, and his ribs which had been broken were misplaced. It is complained, that the charge permits of a double recovery for the same damage—that is, allows the father to recover for the son’s loss of time, to which he was clearly entitled, if entitled to recover at all; and the son to recover for the same damage. We incline to think, that a critical examination of the charge, and especially a comparison of the two paragraphs, do not sustain this contention. They seem to us to draw a line of demarkation for loss of time and lessened capacity to earn money up to the time of the son’s majority, and such loss and lessened capacity after that time; and to give a recovery to the father for the former and to the son for the latter. However, loss of time, as we think, ought to
refer to such loss as has accrued at the time of the trial. Loss of time which may subsequently occur would, in a case like this, result from diminished capacity for labor, and ought to be included in- it. In a matter necessarily so indefinite and difficult of determination, much is left to the speculation of the jury; and a charge should be so framed as to define clearly the elements of damage which they are to take into computation. While determining the pecuniary loss likely to accrue from diminished capacity for earning money, they would likely consider the probable loss of time which would accrue from the injury, it is not clear that an instruction which directs the jury to allow both for prospective loss of and lessened capacity for work, is free from objection. It is calculated to confuse, and may result in swelling the damages. This is especially so in a case like this, in which the capacity to do continuous work remains, and the capacity to do as much work or as effective work is lessened.
For the errors in the charges above quoted, the judgment is reversed and the cause remanded.
Reversed and remanded.
Delivered February 25, 1895.