Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-01-13
COURT OF APPEALS.
Full Text Of Decisions Rendered in the Fort
Worth District

Full Text Of Decisions Rendered in the Fort
Worth district
80 ftG Fort worth and Denver city Kali.
way company, appellant vs.. II. A.. VII
eou. Appcai from Targant county.
CONCLUSIONS on FACT.
rho verdict of the jury. which Is sun.
portcd by The evidence establishes That on
July ~. 1884, Jas. l.. Wilson fireman ON
one OF appellants locomotives was Killed by
reason of the track on account Of its do'
fcriivc construction giving way nnd over
iurnlug the engine. u seoms that the itaoh
where the accident occurred WIS MI or
dump about ten feet nigh. thrown ~ across
% rtyiue or basin between Two bills and was
cOup0H"d 81 loose sand SOME 81 thr VIZ
ucssos styling d Qmcksand On Civ" nlsht
Do question there Wus very heavy run,
but not one That would Poe termed "unpfr.
rcdeniod. p ana the water ncsum1l1trh
against the track 10 such nn extent as 20
cause thc dump. bY rtn9on Of tue mltmhl
Of which 10 was composed. to give WNy
Wneu the engine rume on II. One Dunbar
wa. section foreman ~ appellant w cntrse
Of this part OF los road rud his duties were
To look t0 tue track ANA keep ~ ~ ptVpH
repair. ana about ~ O'Clock on the night M
question. anticipating the danger that wplld
likely result ON account ~ the heavy ram
he went tO TnscOsa, tie nearest station and
notified the operator, who was also the sia,
lion agent VI the danger nud requested
him tO atop ihc train When The tr.hn nf.
rived NJ TascoHa telegram Was handed
tO tho train pa lister. who was on board nhd
uftpr reading 10 be went 90 the telcginphr
instrument ana was Engaged in telegrplhhf
dc being an OPERATOR Tor several mlouii
aud hc then went 10 The cab Whefc ilir tl-
gueor was aud told him 10 proceed win
caution. that heavy rains were reported
ahead. Deceased WITS also lu the cub WIN
thc engineer OF The time pnd cooid nave
heard what WIS 7uid, but no One Know
vhrthcr hc Boo fact heard 10 ur not lhe
train had only proceeded about eight or ten
mites after This warning before the acg'-
dent occurred. Abort six weeks prior 20 thr
accident rho trptk ut this same place hud
given way und the tuudmnsirr knew OF
~ defective condition. TIE evidence JUS
tIhps the nnding that the track nt tllls sume
Deceased had been iu The employ OF appel
liant az fireman., running over this trnrk
for about eight months, but no witness
tvstlhps tuNt Ills attention huH been cNltu
tu lig defective construction. The suit rs
prosecuted by appellee. NJ. A. Wilson, ns sur.
NyiuW wife Tor the benefit ~ rprsclf Wud
Ceusoi ana they recovered Judgment LOT
st0pu. appuriloupd Som 10 uupolle Ma. WIZ
sou, mud $1,000 to- the minor son. FROM
this Judgment thlA npppnl u prosecuted
on thp trial II was developed Jh1t boil
parents OF thO deceased were living unO
appellant moved for 90 new trial because the
suit was not alFu prosecuted for their itii'
pNt aud No nntWcr tu ibis motion appellee
tetao,oi tn npppiiuut a rolpaac to them pNp-
rutcl by said parents uf ull claims Tor uum.
ages that ihcy might have by reason or
thp shifting of their said son. uud up0n he
Ming uf THIS release lhc court reiutcu u"
grant the motion for new trial.
OPINION.
m the eases of thc Railway ys. Culbprson.
as TtAur. CUI aud Railway W.. Spkcr, 80
Ing right uf action for uu Injury result.
ina in dcuth, couirmplaivs ihut ouly one
uuit thlI Doc brought witch shall be for
recover. aud when the suit s not prose.
cutcd for the benefit OF AN of said parties
ana this ia developed during the trial. it
D. he duty Oi the court when requested iu
o. motion Tor % new trial, 90 srt aside the
verdict la The last cnro, however, ~ iH
Hnid that. "if. ln upy manner. the neither
of the deceased had settled her claim for
lac Judgment could thou stand" aud, IN
the sans opinion II iB held that the fact
That Tho claim Of thc minor iH barred hg
Limitation Is not goud answer Co the mo-
since The decision NJ the Culberson ease #
has hepu definitely settled nl THIS Etute
HAT the PROV 'siun of our statute requiring
nu NJ the UrncucinricS to Dc parties was
ouuCted chiefly for the benefit ~ the dcfeu.
dunt lu such sult % protect " against the
bringing ot several suits arising out uf
tie same transaction, and m 10 u"plects To
reuuirc this 10 be- done. those who are not
parties are Not prCcludol VS. Judgment
rendered hi the ease brought by the other
htnenClaics. Nelson W.. Railway. rs TcxRB,
d2l. Railway vs.. kutur, e. reNus. Gt3
~ is rlso wen settled that notWlthsti,ud-
iug tho statute authorizes the auit Tor the
hyuoht of certain m'ncd parties. vet each
uf such parties can only Recover the duiuagc
TINT DEE hus sustained individually boy rcu-Oi
OF such death. Nelson 1914, Hallway supra;
halfway ~. Johnson, as IcXbg. n3G. Rail
Wc are therefore Of opinion mat
100 us much ua uppollrbg uuly re-
covered Tho amount OF damage which
l ln" Jury found ihqt they had
released appellant uum an liability 10
th'm thr court below dil mol ctr 'u over
ruling appellants nation fur q new uIuL
Appellant contents that it was necessary
OF the deceased sh, Md hc tuppOrted hy "a
consideration in order ~ make 40 binding
upon ihem We are Of opinion lhst thls n
correct hut we are also of opinion that the
fact thlt 70 was executed ION the purpose
uul with The result Df defeating upnell.
ANTS motlun Tor now trial is suacicut
WI MISC br borne Va mind that our statute
provides that uil contracts On writing line
roti 70 Nsdeutom REVISED Statutes. ART
4tNs' NtWlon iN; NrN'on, ~ Texas SOS.
ON tho tlW below Plaintiffs were per-
Wlttcd tp prove hy the Witnesses Dunbar
nud Andrews thnt the track nt the place
~ the nrldcut was NOT properly construct.
ci, tn Which defendant Objected upan hp
ground that these witnesses were moi ,uf
n0.cpuy uunlldcd a. eNpera These MI.
nrSsvs stared ihe facts upuu which thni.
Opinions were hased and showed ,lai they
haH hnd a number ~ years experience In
ruIlroadng and both OF them had hepn on.
trusted hy appellant with tho duty which
iD' law devolv,d uron GO 81 kecping l,s
trnrk iu proper condition. We are further
Of NE onlnon that this testimony was
property admitted uudpr repeated dccislous
in Tits state. Railway u.s. rhonpaou. 55
IeNpe tnl Railway Vs. J0rrprd ~ Texas
.itl; Halfway Vs. Richards. So Toxins 1pJ.
halfway rs. KLAUS, 90 Texas. 2N3: nailwnv
Us. Johnson a. Texas. 1890
thc wlinuss Dunbar. was nlpn prrmittcl
io testify That on the night OF tho acrldonl
hc Went to luscusa aud told dcfondnut' n
telegraph operator that tile truck ,vqa
Wnshet ont aud that lho water was running
uNcf lt iu places ana that thc prOsDr,ts MORO
Thar nr could not return on account of mo-
water, cnd requested him % ston thc train
we ave OF opinion thut this evidence Was
properly admitted, Tho law hutnspl upbu
nrpglants ne duly OF looking uftor lis
track, nnd Dunbar was ll9 agent to- whom
% hdl couhdcd tle duty thus impospd ,,non
&c. Ihut notice tu Dunbar WouA thsrot,o
hc notlrp to anuoll lnt Itself uf amy fpef
tuuohiug th5 coalition Ell the track. Mo
duty 10 louk after which had hean couGdpd
~ elm we thlns there can Doc mo- question,
Hallway vs. Mhiunore as ToNas oig, MAI.
WY VS. nunhnin. 40 lpNas ISL Railway NJ.
Farmer ~ Texas, So
No are therefore " opinion Tint mis
evidence 40 least shows that tho conpnuV
had notice OF tho defect nri1r 10 no arri.
iclit Through puuhJe himself. aud oven IA
ID he conceded ihlt the operator was NOT
sueh W agcnt as authorized him 10 M.
rclye the notice n iis behalf lt WAS nr,p.
crly admitted anil 10 h therefore NOT ueros.
snry iur ms 20 decide whether or not No
WIS such nu agent
We are Of opiuloa that thcrc was no error
ul VIZ ov',9n Ns ihe court 10 permitting the