Texas & P. Ry. Co. v. Myers

151 S.W. 337, 1912 Tex. App. LEXIS 671

• Court: Court of Appeals of Texas
• Decided: October 29, 1912
• Status: Published

Opinion

BEVY, J.

(after stating the facts as above) The several assignments mainly present the two points as argued by appellant in its brief: (1) That the cause of action upon which recovery was had was barred by limitation; and (2) that there was no act of negligence shown on the part of the engineer and fireman to support the judgment.

[1] The precise contention as to the first point made is that the claim growing out of the negligence of the engineer of the freight train was barred by limitation -because it was not set up until the filing of the second amended petition in June, 1910, more than two years after the death of Myers. The first petition was filed about a month after the death of deceased. This petition set up the fact that the deceased was struck and killed by a freight locomotive, and the circumstances under which it occurred; and charged the negligence to be in the foreman of the bridge crew in compelling the crew to stay with the hand car till the last to get it out of the way of the approaching freight train. The amended petition in 1910 charged substantially the same facts, reasserting the negligence of the bridge foreman, and also asserting the negligence of the engineer of the freight train in failing to discover Myers in time, or, having discovered him, in failing to stop his engine before it struck Myers. We do not think that the amended petition, upon which the case was tried, introduced a new cause of action against which limitation had run. Caswell v. Hopson, 47 S. W. 54, and authorities there cited.

[2] There was sufficient evidence, we think, to raise the issue of negligence on the part of the operatives of the locomotive proximately causing the death of Myers requiring its submission to the jury, and sufficient to support their findings. Myers v. Railway Co., 134 S. W. 814 (on former appeal). The assignments presenting these two questions, being Nos. 1, 2, 3, 4, 7, 12, 14, and 15, are therefore overruled.

Assignments Nos. 8, 9, 10, and 13 are without injury, and are overruled.

The eleventh and sixteenth assignments are to the point that the judgment is excessive. Besides other things, it was shown that the deceased was young, strong, and healthy, and was earning money, and that his father was 51 years old. Under the 'language of the statute, broad authority is given the jury to measure the pecuniary injury in this character of cases. There is nothing in the record or the size of the verdict to suggest any passion or prejudice on the part of the jury. The assignments are overruled.

It is unnecessary, we think, to discuss ap-pellees’ cross-assignments. They are overruled.

The judgment is ordered affirmed.