T. & P. R'y Co. v. Burnes

Texas Commission of Appeals

T. & P. R'y Co. v. Burnes

2 Posey 239

CourtTexas Commission of Appeals

DecidedJuly 1, 1880

DocketNo. 822

StatusPublished

This text of 2 Posey 239 (T. & P. R'y Co. v. Burnes) is published on Counsel Stack Legal Research, covering Texas Commission of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

T. & P. R'y Co. v. Burnes, 2 Posey 239 (Tex. Super. Ct. 1880).

Pincite

Opinion

Opinion.— When the several provisions of the statute quoted above are considered in connection with rule 23, 47 Tex., 621, it appears with sufficient certainty that, when the depositions have -been on file for more than one entire day before the trial, the motion to suppress the same must be [241]*241filed and notice given before the case is called for trial, and the motions disposed of before either party has announced ready for trial on the merits. Before announcing upon the merits, the party has a right to have such motions disposed of, so that if sustained, and his evidence suppressed, he can act advisedly in making his announcement. Appellee having announced ready upon the evidence, to which no objection had then been made, and without any notice that any such objections would be urged, could not therefore be deprived of the benefit of that evidence on account of the form or manner of taking.

We believe the court erred in admitting, over the objection of defendant, evidence as to the improvement made at that point after the injury.

As to the charge of66 gross negligence,” the most approved definition of the térra, is that given by Judge Story in his work on Bailments, section 17, and which is generally adopted: “ G-ross negligence is the want of slight care and diligence.”

Upon the evidence as disclosed by the record, the court erred in submitting the question of exemplary damages to the jury.

The correct rule for measuring the damages in this class of cases is the probable amount that the deceased would have contributed to the appellee had he not lost his life by reason of the accident. In determining the amount, the age and probable length of time the mother would live, as well as that of the son had he not been killed in the wreck, and the probability of his continuing to make such contribution had he lived, should be taken into consideration. In respect to the rule for the measure of damages, the charge of the court is such as probably to mislead the jury.

Beveeseb ato eematoeb. •

Free access — add to your briefcase to read the full text and ask questions with AI

Opinion.— When the several provisions of the statute quoted above are considered in connection with rule 23, 47 Tex., 621, it appears with sufficient certainty that, when the depositions have -been on file for more than one entire day before the trial, the motion to suppress the same must be [241]*241filed and notice given before the case is called for trial, and the motions disposed of before either party has announced ready for trial on the merits. Before announcing upon the merits, the party has a right to have such motions disposed of, so that if sustained, and his evidence suppressed, he can act advisedly in making his announcement. Appellee having announced ready upon the evidence, to which no objection had then been made, and without any notice that any such objections would be urged, could not therefore be deprived of the benefit of that evidence on account of the form or manner of taking.

We believe the court erred in admitting, over the objection of defendant, evidence as to the improvement made at that point after the injury.

As to the charge of66 gross negligence,” the most approved definition of the térra, is that given by Judge Story in his work on Bailments, section 17, and which is generally adopted: “ G-ross negligence is the want of slight care and diligence.”

Upon the evidence as disclosed by the record, the court erred in submitting the question of exemplary damages to the jury.

The correct rule for measuring the damages in this class of cases is the probable amount that the deceased would have contributed to the appellee had he not lost his life by reason of the accident. In determining the amount, the age and probable length of time the mother would live, as well as that of the son had he not been killed in the wreck, and the probability of his continuing to make such contribution had he lived, should be taken into consideration. In respect to the rule for the measure of damages, the charge of the court is such as probably to mislead the jury.

Beveeseb ato eematoeb. •

Cite This Page — Counsel Stack

Bluebook (online)

2 Posey 239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/t-p-ry-co-v-burnes-texcommnapp-1880.