18 HALL
v.
&
S. A;
'I,
'
RY,Co, et al. ;, '
"',
(Ci?'cuit Court, W. D. Texas, Si:tnAnton'io Division. May 25, 1889.) 1. 2. MASTER AND SERVANT-;-FEJ,LOW-SERVANT!i., SAME-RAILROAD COMPANIES-RuLES.
A telegraph operator is not a fellow,servant with a brakeman.
Under rules requiring a telegraph operator "to report defects In roads and bridges, or of ap.y kind., wherever met, to the superintendent, and. if possible, to the nearest section master or bridge foreman." it is the operator's duty to report such defects, etc., when they come to his knowledge, whether he is requested to do so by another employe or not.
3.
DEATH BY WRONGFUL ACT-DAMAGES.
In an action by a father for dar,nages for the negligent killing of his son, uncleI' Rev. St. Tex. art. 2909, limiting the damages in such cases to pecuniary loss only, the jury may consider tl:ie circumstances of the son, his occupation, age. health. habits of industry. sobriety. and economy. his annual earnings, and his probable duration of life at the time of the accident; also the amount of property, age, health, and probable duration of plaintiff's life, and the amount of assistance he had a reasonable expectation of receiving from the son.
At Law. Action for damages for negligent killing. McLeary &: King and H. H. Boone, for plaintiff. Columbus Upson, for defendants. MAXEY, J., jury.) ,The plaintiff, Lemnel H. Hall, as the surviving father of Lemuel R. Hall, deceased, brings this suit against the Galveston, Harrisburg & San Antonio Railway Company and the Southern Pacific Company, to recover damages resulting from the death of his son, Lemuel R., growing out of injuries received by the son at Hondo river bridge while in the service of defendants as a brakeman. The cause of the disaster, as claimed by the plaintiff, and the death of his son, will be stated to you partially in the language of the petition, as follows: "That the proximate cause of the said injury done to the said Lemuel R. Hall, 'resulting in his death, was the defective and unsafe condition of the said defendants' railroad bridge across the Hondo river, and the track laid thereon; that the said bridge was at the time of the said disaster so broken and damaged .as to be wholly unfit fortmins to pass over, and incapable of bearing,the weight of an and train of cars." The petitio1;l of plaintiff further alleges that the son of plaintiff was ignorant of the unsafe condition of the bridge, and believed it to .be perfectly safe, and sufficient to support the weight of the train on he was riding; "and although the defendants well knew that saidbriclge WaS unsafe. insufficient to. support the weight of ]0· comotives and trains crossing the sawe, yet they wholly failed and neglected tore,pair the said bridge and track thereupon, and to put the same in good anqsafe condition for the use of their employes, and wholly failed a1;ld,liwgJected to warn the said I,em.uel R. Hall and their other employes oithe unsound, unsafe, and. dangerous condition of the said bridge, but suffered them unawa.res, the discharge of their duty to the defendants, to rush'headlong upon certain death."
in
HALL
GALVESTON, H. & S. A. RY. CO.
19
:The defendants, in their answer, deny plaintiff's l'ight to recover on the following grounds: (1) That the bridge was a good and substantial structure, and in a good state of preservation and repair, and hence that the injuries resulting to the deceased, Hall, from its giving away, were included in the'risks' assumed by him upon entering the service of defendants; (2) that Hall, the deceased, was guilty of negligence which contributed directly to his injuries; and (3) that, if there was any negligence at all on the part of defendants in connection with the accident which befell plaintiff's son, it was the negligence of a fellow-servant, for which the dE'fendants are not liable. In order to relieve this case of the irrelevant matter which has crept into it, I propose to direct your attention to what I regard as the real issues in the controversy, and, with that view, you are instructed that the following facts are indisputably shown by the testimony: (1) On the 1st day of March, 1888, two trains of cars of the defendants-one going east and the other west-met at Hondo City, a station on the line of the road, from three to five miles west of Hondo river. (2) The west-bound train was a regular freight train, and the train was what the "extra." (3) Thayer was the conductor, Crowley the engineer, and :J1]tkel was one of the brakemen, on the west-bound train. On the east-bound train Davidson was the conductor, Hilliard the engil1eer, and Hall (the plaintiff's son) and HardE'sty were the brakemen. (4) Prior to reaching Hondo City, at the date mentioned, the west-bound train, partially laden with lumber, passed over the Hondo river bridge, which 'wus, before the crossing of that train, in a good and safe condition.While this train was passing over the bridge, a heavy piece of bridge timber fellftom one of the cars on the bridge; and it is not denied by either side that this pie<:e of timber, in falling, injured the bridge; but the train-then on the bridge passed Over safely. (5) Theeast-bound train left; Hondo City between 10 and 30ininutes after the arivalthere of the train going west. This train (the east-bound train) continued east at It rapid rate of speed, and in passing over the Hondo river bridge the structt'tre gave away, and in the disaster son was so severely injured'that he died within a few days thereafter. The facts of this case develop nothing, prior to the crossing of the bri-lge by the west-bound train, which would render the defendants liable in this suit, and you are so instructed. And the mere fact, gentlemen, disconnected frdm other facts, that a good, substantial railway bridge, in a state of safe pres'ervation and in good repair, suddenly gives away under the weight'al1d forc,e of a moving train, would not render the company liabl& in a suit brought by an employe for injuries resulting therefrom; for in that case the injury would be included in the risks assumed by him in entering the service ofthe company for which no liability would attach to the latter. But the petition ofthe plaintiff alleges that the defendants failed and neglected to warn the deceased of the unsafe condition of the bridge, but suf-· fered him and his co-employes to rl1shheadlong upon sudden death. In support of this allegation it is insisted by the plaintiff that the engineer, Crowley, and thetelegraph' operator' at Hondo City, .(the latter being also
20
vol.
in the employ of the defendants,) having knowledge that the bridge crossing Hondo river was defective, failed.to report its defective condition to the superintendent, or the nearest section-master or bridge gang, and because of their failure so to do the train upon which deceased was working (with Davidson ascondl,l<;tor) proceeded down the track, without notice or warning of the dangerous condition of the bridge, and thus the disaster was precipitated. Now, inthis connection, you are instructed that, if Crowley was negligent in the performance of his duties, his negligence would not be imputable to the defendants, and they would not be li!\bletherefor for any injuries which may have resulted to the deceased, for the reason that Ct-o\vley and the deceased were fellow-servants. But the rule of law as to fellowservants would not exempt the defendants from liability for the negligence of Sale, the operator, (if any has been shown by the testimony,) if the injuries of deceased resulted from such negligence, because the operator and deceased did not occupy, with reference to each other, the attitude of fellow-servants in the sense of exempting an employer trom liability to a servant for the negligent acts of a fellow-servant. Now, was Sale negligent in failing, as claimed, to report the condition of the bridge to the superintendent and the other officers above named, If he knew the bridge was injured? That he did not make a report to the superintendent admits of no doubt, as he so testified himself. Rules of the defendants have been introduced in evidence to show that it was the duty of Sale "to report defects in roads or bridges, or obstructions of any kind, wherever met, to the superintendent, and, if possible, to the nearest section master or bridge foreman." Sale testified that it was not his duty to telegraph reports in reference to bridges, etc., unless requested by saIlle employe of the company. You are charged that, under the rules admitted in evidence, it was his duty tp make reports as required by the rules, whether he was requested to do so by any other employe or not, if he knew of the existence of the rules; and of his knowledge in that regard you must satisfy yourselves from the testimony. It is shown by the testimony that Sale knew that a heavy bridge timber, had fallen on the bridge from Crowley's train; and you are instructed that, if he knew of the existence of the rule to which I have referred, and knew that the bridge had been probably injured by the falling timber, and was wanting in the exerci8e of8uch care in not reporting person ofordithe condition of the bridge to the superintendent,. as nary prudence and caution would have exercised, then such failure of duty of Sale was negligence; and if the injuries of the deceased resulted from such negligence on part of Sale, the defendants would be liable in this suit, and in that event your verdict should be for the plaintiff, unless the deceased, Hall, was himself guilty of negligence which contributed to his injuries. The defendants insist that he was so negligent, in that Hall knew of the defects in the bridge, and, notwithstanding his knowledge, continued on the train, and carelessly exposed himself .to.the impending danger.. Upon this point, gentlemen, the la,w req:uires .a man to take due and relLsonable care for :\lis pwn
HAI.I,
21
failing in that, he will not be permitted to rAcover damages for injuries which he brings upon himself. If the deceased knew that the bridge was dangerous, from information received from Crowley or Davidson, or from any other source, and did. not avail himself of the knowledge acquired for his own safety ,and if he failed to exercise that reasonable care for hiR own preservation as an ordinarily prudent person would have exercised in a similar situation, and under like circumstances, and his injuries resulted therefrom, then the plaintiff' would not be entitled to recover, and your verdict should be in favor of the defendants. The plaintiff in this case does not contend that the injurieR of his son resulted from any act of negligence on the part of the conductor, Davidson" and therefore that feature of the case will not be submitted to YOUI' consideration. The questions, touching the alleged negligence on the part of Sale, the telegraph operator, and contributive negligence on the part of the deceased, Hall, are questions purely of fact, and remitted solely to your determination, and you must form your conclusions in reference to them from a consideration of all the facts and circumstances before you. You have heard the testimony of the witnesses, both for plaintiff' and defendants, and have observed their demeanor upon the stand, and their manner of testifying. Of their credibility you are the exclusive judges, as well as of the weight to be aUnched to their testimony. With these principles of law as a guide"consider the case, and render such a verdict as the law and testimony may warrant. If, in view of the evidence and the foregoing instructions, your finding should be in favor of the defendants, you will go no further, and simply render a verdict in their favor; but, if you find in favor of the plaintiff, you will proceed to determine the amount of damages wbich you should award him, and upon this question it will be necessary for the court to give you instructions. This suit,you are aware, is brought, not by the person injured in the bridge disaster, but by his father. The measure of damages in the two cases is entirely different. In both, the amount is left largely tothe discretion of the jury, but thllt discretion must be exercised in view of the evidence, and should not be a matter of mere guess-work and speculation. In suits of this character, instituted by the father for the negligent killing of his son, the father is not entitled to recover anything for physical suffering, or mental pain and anguish, endured on account of the son's death; nor can he recover damages because of the loss of the son's society, (see Railroad Co. v. Barron, 5 Wall. 105; March v. Walker, 48 Tex. 375;) nor, under the facts of this case, is the plaintiff entitled to recover punitive or exemplary damages. The statute, which authorizes the maintenance of suits" for injuries resulting in death," provides that "the jury may give such damages as they may think proportioned to the injury resulting from such death." Rev. St. art. 2909. It is necessary for the plaintiff, in cases of this kind, to show a damage of a pecuniary nature; yet such damages are not to be given merely in ref· erence to the loss of a legal right, but may be calculated with reference to the reasonable expectation which the plaintiff' had, resulting from his
22
FEDERAL REPORTER,
vol. 39
condition, and the disposition and ability of his son, during his life, to bestow upon him pecuniary benefit as of right, or in obedience to
the dictates of filial duty without legal claim. Railroad Co. v. Kindred, fol.' 57 Tex. 498. The damages in this case, if any are awarded, the pecuniary loss only, sustained by the plaintiff on account of the death of his son, it is incumbent upon the plaintiff to prove such facts and circumstances as will enable the jury to return a verdict upon the evidence which would. approximate reasonable certainty; and the testimony may include the circumstances of the deceased son, his occupation, age, health, habits of industry, sobriety, and economy, his skill and capacity for business, the amount of his property, his annual earnings, and the· probable duration of his life. Rauroad Co. v. Cowser, ld. 304. And so the testimony should include the circumstances of the plaintiff, his age and health, the amount of his property, and the probable duration of his life. How long, gentlemen, under the testimony in this case, will be the probable duration of the plaintiff's life, dating from his son's death, and how much pecuniary assistance would he have had a reasonable expectation of receiving from his son, had he lived? These are important questions for yon to consider, and their solution is involved in oome difficulty. It is shown by the testimony that, at the date of his son's death, plaintiff was 57 years old, and in feeble health, and that prior to that time the son had sellt him sums of $40 or $50, as plaintiff had asked for them. The testimony further shows that the son had urged plaintiff to move elsewhere,-that is, change his residence for his health, -and promised and pledged plaintiff to give him $40 or $50 per month. 'Caning your attention to that promise on the part of the son to give plaintiff that sum of money monthly, you are instructed that the son, had would not ,have been compelled to pay that amount of money mouthly to his father. He would have been under no legal obligation 'to do it, but could have paid it to him or not, at his option. In connec'tion with the question of damages you may also regard the contingency of the son's marriage, had he Iived, and whether that circumstance would have in increasing or diminishing-the sum which the son would probably have contributed to the support and maintenance()f the plainti if. ' Consider all the facts and circumstances in evidence, and return such, a verdict as you may deem right and proper, in view of the testhnonyand these instructions. :
FOOTllJ V. MASSACHUSETTS BEN. ASS'N OF BOSTON·
23
.FOOTE
MASSACHUSETTS BEN. ASS'N OF BOSTON.
(Circuit COU'T't, N. D. New YO'T'k. SERVICE· OF PROCESS-OBJECTIONS
June 18, 1889.)
W Alvim. A general appearance by the defendant in an action is a waiver of the objection that the service of summons on him was irregular. because not made in the district of which he was an inhabitant, as required by act Congo March 3, 1887.
At Law. On motion to vacate certain orders. William Blaikie, for the motion. J. K. Hayward, contra. WAI>LACE, J. This action is brought upon a policy oflife insurance. The requisite diversity of citizenship to confer jurisdiction of the controversy upon this court exists between the parties; the plaintiff being a citizen of this state, and the dl:'fendant a corporation of Massachusetts. The action was commenced by the service of a summons upon the agent of the defendant designated to receive service of process within this state, pursuant to the provisions of the state laws requiring foreign insurancecompanies doing business here to designate such an agent. Before the time for answering expired, the defendant, by its attorney, entered a general appearance in the action. This was in November, 1887. From that time until March, 1888, no formal proc(ledings appear to have been taken in the action, but negotiations seem to have been carried on between the parties, and the time for serving pleadings was extended from time to time by stipulation between the attorneys. In March the defendant made an application to the court for leave to substitute another attorney in lieu of the one who had appeared for it, and to withdraw the notice of appearance which had been served by him with leave to enter a new appearance nunc pro tunc. The plaintiff's attorney did not receive notice of ;this application, owing to his absence from the state, and no one represented the plaintiff when the application was brought to a hearing. The application was granted, and leave was gh-en to the defendant in effect to enter a special appearance for the purpose of moving to vacate the .service of the summons which had been made upon its agent. The defendant, by its new attorney, then made an application to the court to vacate the service of the summons upon the ground that the defendant was not an inhabitant of the district in which the !>ervice was made. 'J'heplaintiff's attornoy failed to receive notice of this application also, owing to his absence from the No one appeared for the plaintiff upon the hearing of; that !lpplication, and the court made an orderdismissing the: action, and vacating the service of the process. Notice of both application!! was duly served by mail upon the plaintiff's attorney by the attorney for ttle defendant,and the orders authorizing the special appearance and vacating the service of the process were in all respects l'egular. A. motion has now been made for the plaintiff, upon.affiJavits aIJd, excusing th\311eglect of her attorney to appear upon the
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