Appellee brought this suit to recover damages for the death of her husband, alleged to have been killed through the negligence of appellant. Judgment was rendered in favor of appellee for $20,000.
The alleged grounds of negligence were that the step of the tender of an engine of the railway company was worn; that the tender leaked, and caused the step to become slippery, and that appellee's husband, in attempting to get upon the tender, and in the proper discharge of his duty, slipped, fell, and was killed by being run over by the tender.
Appellant's first proposition is that Revised Statutes 1911, art. 4694, is unconstitutional, in that the caption to said act did not authorize the inclusion of receivers, and was therefore in violation of section 35, art. 3, of the Constitution of this state. The caption of the act referred to is as follows:
"An act to amend article 4694 of the Revised Civil Statutes of 1911, giving cause of action where injuries resulting in death is caused by the negligence of a corporation, its agents or servants, and declaring an emergency."
Section 1 of this act is as follows:
"1. When the death of any person is caused by the neglect or carelessness of the proprietor, owner, charterer or hirer of any railroad, steamboat, stage coach or other vehicle for the conveyance of goods, passengers, or by the unfitness, neglect or carelessness of their servants or agents; when the death of any person is caused by the neglect or carelessness of the receiver or receivers, or other person or persons in charge or control of any railroad, or their servants or agents; the liability of receivers shall extend to cases in which the death may be caused by reason of the bad or unsafe condition of the railroad or machinery or other reason or cause by which an action may be brought for damages on account of injuries, the same as if said railroad was being operated by the railroad company." Gen. Laws 33d Leg. p. 288 (Vernon's Sayles' Ann.Civ.St. 1914, art. 4694).
It will be observed that the caption does not refer to receivers, and it is for this reason that appellant contends that, in so far as it relates to receivers, it is unconstitutional. The article amended included receivers. We hold that the failure of the caption to mention receivers did not repeal the law as it formerly existed. Holman v. Cowden (Tex.Civ.App.) 158 S.W. 571; Pasture Co. v. Carpenter (Tex.Civ.App.)168 S.W. 408; Id., 109 Tex. 103, 200 S.W. 521. Should we be in error as to the statute of this state with reference to the responsibility of receivers, this would be immaterial in the instant case, for the reason that the deceased at the time of his death was engaged in interstate commerce, and the federal statute upon this issue includes receivers.
Appellant's second proposition is that the court erred in refusing to instruct a verdict for the defendant, for the reason that the evidence does not raise any issue for the jury. We overrule this contention, for the reason that the evidence is sufficient to raise the issue of negligence on the part of appellant, in that the evidence showed that the engine leaked; that the steps were worn and were wet from the leakage, and that deceased probably slipped when attempting to board the train. The deceased had thrown a switch, and was standing near the railway track. It was proper for him to attempt to board the train by the use of the steps referred to. He was seen near the track as the train approached him. He was seen to fall from where the step was situated. The reasonable inference is that he attempted to board the train, and that his foot slipped, causing him to fall under the engine. It is true that a witness for the appellant, a negro, who was on a platform some distance away, testified that the deceased raised his foot, and that the same was struck by the steps before he got upon them. This testimony was sufficient to raise the issue as to the manner in which deceased was killed. The jury decided this issue in favor of appellee. The evidence not only justified the submission of the issue, but is sufficient to sustain the finding of the jury.
Appellant's third proposition is that it was error to permit the witness Weatherred, a train conductor, to testify as to what were his earnings as such conductor at the time of the death of Ridlehuber. The testimony showed that Ridlehuber had been in the employ of the railroad company for a number of years, and that he was a brakeman at the time, and also a substitute conductor, and that he was in the line of promotion. Such testimony was permissible to show the
probable earnings of the deceased in the near future. Hines v. Walker (Tex.Civ.App.) 225 S.W. 837.
Appellant's fourth proposition is that it was error to permit a witness to testify that, when a train was moving, it created suction and dust, the grounds for such objection being that the testimony was irrelevant and immaterial. We do not think that it was either irrelevant or immaterial, for the reason that, if the train created suction, it would throw dust on the steps, and, as the leakage cause the steps to be wet, they would probably be in a slippery condition. Besides this, the witness Payne testified, without objection, to substantially the same state of facts. Strachbein v. Gilmer (Tex.Civ.App.) 202 S.W. 333; Hadnott v. Hicks (Tex.Civ.App.) 198 S.W. 359. These cases reiterate the well-recognized rule that it is not reversible error to permit a witness to testify to a state of facts when substantially the same testimony has been given by another witness without objection.
Appellant objects to the refusal of the court to charge the jury that, if the deceased, Ridlehuber, in getting upon the steps in question, made a hop and a jump to the bottom step, and such action was negligence on the part of Ridlehuber, and tended directly to cause his injury, they would find for the defendant. There was no error in refusing to give this charge. There was not testimony that Ridlehuber attempted to board the train in this manner at the time he received the injury from which he died. The only reason that could be assigned for giving such a charge would be that such act was contributory negligence on the part of deceased. Under the federal statute, contributory negligence is not a defense where an employé is injured. The charge required the jury, in the event they so found, to return a verdict for the defendant.
The charge refused, as complained of in the sixth proposition, was improper, because it was upon the weight of the evidence. The seventh proposition is based on the assumption that there was no evidence sufficient to require the case to be submitted to the jury. We have disposed of this issue under our remarks on the second proposition. We do not think the charge of the court is subject to the criticism submitted under appellant's proposition 7a. Nor do we think that the charge is subject to the criticism submitted under appellant's eighth and ninth propositions. The evidence is sufficient to show that the steps of the tender were defective within the meaning of the Boiler Inspection Act of February 17, 1911, as amended in 1915 (U.S. Comp. St. 1918, §§ 8630-8639d), and as applied under rule 153 of the Interstate Commerce Commission, which provides:
"(a) Feed Water Tanks. — Tanks shall be maintained free from leaks, and in safe and suitable condition for service. Suitable screens must be provided for tank wells or tank hose."
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Appellee brought this suit to recover damages for the death of her husband, alleged to have been killed through the negligence of appellant. Judgment was rendered in favor of appellee for $20,000.
The alleged grounds of negligence were that the step of the tender of an engine of the railway company was worn; that the tender leaked, and caused the step to become slippery, and that appellee's husband, in attempting to get upon the tender, and in the proper discharge of his duty, slipped, fell, and was killed by being run over by the tender.
Appellant's first proposition is that Revised Statutes 1911, art. 4694, is unconstitutional, in that the caption to said act did not authorize the inclusion of receivers, and was therefore in violation of section 35, art. 3, of the Constitution of this state. The caption of the act referred to is as follows:
"An act to amend article 4694 of the Revised Civil Statutes of 1911, giving cause of action where injuries resulting in death is caused by the negligence of a corporation, its agents or servants, and declaring an emergency."
Section 1 of this act is as follows:
"1. When the death of any person is caused by the neglect or carelessness of the proprietor, owner, charterer or hirer of any railroad, steamboat, stage coach or other vehicle for the conveyance of goods, passengers, or by the unfitness, neglect or carelessness of their servants or agents; when the death of any person is caused by the neglect or carelessness of the receiver or receivers, or other person or persons in charge or control of any railroad, or their servants or agents; the liability of receivers shall extend to cases in which the death may be caused by reason of the bad or unsafe condition of the railroad or machinery or other reason or cause by which an action may be brought for damages on account of injuries, the same as if said railroad was being operated by the railroad company." Gen. Laws 33d Leg. p. 288 (Vernon's Sayles' Ann.Civ.St. 1914, art. 4694).
It will be observed that the caption does not refer to receivers, and it is for this reason that appellant contends that, in so far as it relates to receivers, it is unconstitutional. The article amended included receivers. We hold that the failure of the caption to mention receivers did not repeal the law as it formerly existed. Holman v. Cowden (Tex.Civ.App.) 158 S.W. 571; Pasture Co. v. Carpenter (Tex.Civ.App.)168 S.W. 408; Id., 109 Tex. 103, 200 S.W. 521. Should we be in error as to the statute of this state with reference to the responsibility of receivers, this would be immaterial in the instant case, for the reason that the deceased at the time of his death was engaged in interstate commerce, and the federal statute upon this issue includes receivers.
Appellant's second proposition is that the court erred in refusing to instruct a verdict for the defendant, for the reason that the evidence does not raise any issue for the jury. We overrule this contention, for the reason that the evidence is sufficient to raise the issue of negligence on the part of appellant, in that the evidence showed that the engine leaked; that the steps were worn and were wet from the leakage, and that deceased probably slipped when attempting to board the train. The deceased had thrown a switch, and was standing near the railway track. It was proper for him to attempt to board the train by the use of the steps referred to. He was seen near the track as the train approached him. He was seen to fall from where the step was situated. The reasonable inference is that he attempted to board the train, and that his foot slipped, causing him to fall under the engine. It is true that a witness for the appellant, a negro, who was on a platform some distance away, testified that the deceased raised his foot, and that the same was struck by the steps before he got upon them. This testimony was sufficient to raise the issue as to the manner in which deceased was killed. The jury decided this issue in favor of appellee. The evidence not only justified the submission of the issue, but is sufficient to sustain the finding of the jury.
Appellant's third proposition is that it was error to permit the witness Weatherred, a train conductor, to testify as to what were his earnings as such conductor at the time of the death of Ridlehuber. The testimony showed that Ridlehuber had been in the employ of the railroad company for a number of years, and that he was a brakeman at the time, and also a substitute conductor, and that he was in the line of promotion. Such testimony was permissible to show the
probable earnings of the deceased in the near future. Hines v. Walker (Tex.Civ.App.) 225 S.W. 837.
Appellant's fourth proposition is that it was error to permit a witness to testify that, when a train was moving, it created suction and dust, the grounds for such objection being that the testimony was irrelevant and immaterial. We do not think that it was either irrelevant or immaterial, for the reason that, if the train created suction, it would throw dust on the steps, and, as the leakage cause the steps to be wet, they would probably be in a slippery condition. Besides this, the witness Payne testified, without objection, to substantially the same state of facts. Strachbein v. Gilmer (Tex.Civ.App.) 202 S.W. 333; Hadnott v. Hicks (Tex.Civ.App.) 198 S.W. 359. These cases reiterate the well-recognized rule that it is not reversible error to permit a witness to testify to a state of facts when substantially the same testimony has been given by another witness without objection.
Appellant objects to the refusal of the court to charge the jury that, if the deceased, Ridlehuber, in getting upon the steps in question, made a hop and a jump to the bottom step, and such action was negligence on the part of Ridlehuber, and tended directly to cause his injury, they would find for the defendant. There was no error in refusing to give this charge. There was not testimony that Ridlehuber attempted to board the train in this manner at the time he received the injury from which he died. The only reason that could be assigned for giving such a charge would be that such act was contributory negligence on the part of deceased. Under the federal statute, contributory negligence is not a defense where an employé is injured. The charge required the jury, in the event they so found, to return a verdict for the defendant.
The charge refused, as complained of in the sixth proposition, was improper, because it was upon the weight of the evidence. The seventh proposition is based on the assumption that there was no evidence sufficient to require the case to be submitted to the jury. We have disposed of this issue under our remarks on the second proposition. We do not think the charge of the court is subject to the criticism submitted under appellant's proposition 7a. Nor do we think that the charge is subject to the criticism submitted under appellant's eighth and ninth propositions. The evidence is sufficient to show that the steps of the tender were defective within the meaning of the Boiler Inspection Act of February 17, 1911, as amended in 1915 (U.S. Comp. St. 1918, §§ 8630-8639d), and as applied under rule 153 of the Interstate Commerce Commission, which provides:
"(a) Feed Water Tanks. — Tanks shall be maintained free from leaks, and in safe and suitable condition for service. Suitable screens must be provided for tank wells or tank hose."
"(b) Not less frequently than once each month the interior of the tank shall be inspected and cleaned, if necessary.
"(c) Top of tender behind fuel space shall be kept clean and means provided to carry off waste water. Suitable covers shall be provided for filling holes."
The tenth proposition complains of the fifth paragraph of the court's charge. No objection was made to this prior to submitting the case to the jury; but had there been there was no affirmative error in this paragraph of the court's charge. Had appellant desired a further charge on this subject, he should have requested the same.
The eleventh proposition submits appellant's contention that the verdict is excessive. An appellate court is not called upon to state what damages its members would have allowed had they been members of the jury; but the verdict of the jury as to damages will be sustained in all cases, unless it is so excessive as to indicate that it was probably influenced by passion, prejudice, sympathy, or some other improper cause. We cannot say that such is shown to be the case by the testimony herein; and therefore we overrule appellant's contention as to the verdict being excessive.
Finding no reversible error of record, the judgment of the trial court is affirmed.
On Motion for Rehearing.
Appellant, in his motion for a rehearing, insists that we were in error in holding that the plaintiff was entitled to recover on account of the death of her husband; the proposition being that the act of 1913 (General Laws, p. 288) is unconstitutional in so far as it includes receivers, for the reason that receivers are not mentioned in the caption of the act. The right to recover on account of the wrongful death of another did not exist at common law, but is purely statutory. The original act in this state, giving the right to recover damages on account of the wrongful death of another, was adopted in 1860, and was carried forward in the Revised Statutes of 1879 as article 2899. There were two sections to this article. The article read as follows:
"An action for actual damages on account of injuries causing the death of any person, may be brought in the following cases:
"1. When the death of any person is caused by the negligence or carelessness of the proprietor, owner, charterer or hirer of any railroad, steamboat, stagecoach or other vehicle for the conveyance of goods or passengers or by the unfitness, gross negligence or carelessness of their servants or agents.
"2. When the death of any person is caused by the wrongful act, negligence, unskillfulness, or default of another."
In Turner v. Cross, 83 Tex. 218, 18 S.W. 578, 15 L.R.A. 262, it was held that article
2899 did not include receivers. To meet this omission, on April 11, 1892, the first section of said article (which has been carried forward in Revised Statutes of 1905 as article 3017) was amended so as to include receivers of railroads, their agents and servants. It was held by the Court of Civil Appeals, in Ritz v. City of Austin, 1 Tex. Civ. App. 455,20 S.W. 1029, and in Searight v. City of Austin, 42 S.W. 857, that the word "another" in section 2 of said article meant another person, and did not include a corporation. Writs of error were denied in these cases, thus making them decisions of the Supreme Court. The doctrine announced in these cases was affirmed by the Supreme Court in answer to certified question in Elliott v. City of Brownwood, 106 Tex. 292, 166 S.W. 1129. It was to meet these decisions that the act of 1903 was adopted. Article 3017 was carried forward in the Revised Statutes of 1911 as article 4694. The caption of the act of April 17, 1913, reads as follows:
"An act to amend article 4694 of the Revised Civil Statutes of 1911, giving cause of action where injuries resulting in death is caused by the negligence of a corporation, its agents or servants, and declaring an emergency."
This caption means that the article is amended by giving cause of action, etc., or so as to give cause of action, etc. The amended act re-enacts the first section of article 4694 verbatim, except the word "neglect" is substituted for "negligence." Section 2 of said act is made to read as follows:
"When the death of any person is caused by the wrongful act, neglect, unskillfulness or default of another person or corporation, their agents or servants."
We quote from appellant's motion for a rehearing as follows:
"From a casual inspection of the title to act No. 7235, quoted above, it is apparent, as Judge Phillips in his opinion states, that the act was intended merely to enlarge article 7235 so as to have included in its designation of counties privilege to prohibit stock running at large."
In the case referred to, Ward v. Carpenter, cited in our original opinion herein, it was held that the act which omitted Matagorda county did not thereby repeal the former act, which included Matagorda county. It is more plainly evident that the act of April 1913, was meant merely to enlarge the scope of article 4694 than was the case in Ward v. Carpenter. If there could be any doubt that such was the intention of the Legislature in enacting this amendment, that would be set to rest by section 2 of said act, which reads as follows:
"Sec. 2. That all laws in conflict herewith be repealed. The Supreme Court having held that the present article does not allow recovery for injuries resulting in death caused by the wrongful act, neglect, unskillfulness or default of a corporation, its agents or servants, creates an emergency and an imperative public necessity, demanding the suspension of the rule requiring bills to be read on three several days in each House, and said rule is hereby suspended, and that this act take effect from and after its passage, and it is so enacted."
In Mortgage Co. v. Hardy, 93 Tex. 298, 55 S.W. 171, the court said:
"In view of the previous decisions in this and other courts and of the course of legislation based upon their authority, it must be held that such a reference to the number of an article in a code, such as our Revised Statutes, is sufficient in the title of an act amendatory thereof to allow any amendment germane to the subject treated in the article referred to."
The amendatory article of 1913 referred to the article of the Revised Statutes to be amended, and indicated in what respect it was to be amended.
In our original opinion herein we said:
"The evidence is sufficient to raise the issue of negligence on the part of appellant, in that the evidence showed that the engine leaked; that the steps were worn and were wet from leakage."
We should have omitted the statement "the steps were worn." There is no evidence that they were worn beyond such as would be necessarily inferred from their use, and no evidence to indicate that they were worn in such a manner as to render them to any extent unsafe. In our opinion herein we also used the following language:
"Deceased was seen to fall from where the steps were situated."
We did not mean by this language to indicate that he was seen to fall from the steps, but only that he was in the vicinity of the steps when he was seen to fall. No one saw him on the steps.
After a very careful examination of the testimony in this case, we have arrived at the conclusion that we were in error in affirming the judgment of the trial court, in that the evidence is not sufficient to show negligence upon the part of appellant. It would have been more satisfactory if this case had been submitted on special issues, instead of by general charge. As in all instances, we are loath to disturb the verdict of a jury, but we think that the evidence in this case as to the negligence of the appellant is too meager to allow the judgment to stand.
For the reasons stated, our former judgment herein, affirming the judgment of the court below, is set aside, said judgment is here reversed, and this cause is remanded for a new trial.
Motion granted.
Reversed and remanded.