
    SAN ANTONIO & A. P. RY. CO. v. WILLIAMS et al.
    (Court of Civil Appeals of Texas. San Antonio.
    June 11, 1913.
    Rehearing Denied June 28, 1913.)
    1. Death (§ 42) — Actions—Parties.
    Act 1909 (Acts 31st Leg. [1st Called Sess.] c. 10; Rev. Civ. St. 1911, arts. 6048-6052), relating to liability for negligence to railroad emplojés, and in case of the death of an employe giving an action to his personal representative for the surviving widow, children, father, and mother, etc., did not change the existing rt le i. uder Rev. Civ. St. 1911, arts. 4698 and 4699, giving an action for the benefit of the surviving wife, children, parents, etc., to be brought by all or any one or more of the parties entitled thereto, .that the plaintiff in such suit might join the other statutory beneficiaries for the determination of .their rights, though alleging that they had none, so that, in an action by the widow and minor child for wrongful death, the court might properly render judgment against the parents of the deceased, although they had no legal notice of being made parties.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 58; Dec. Dig. § 42.]
    2. Master and Servant (§ 281) — Action foe Inju bies — Evidence—Orders.
    Evidence in an action for tne death of a railroad engineer alleging negligence of defendant’s conductor in ordering him to move his train, causing a collision, held to show that the engineer was justified in obeying the orders of the conductor.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 987-996; Dec. Dig. § 281.]
    3. Master and Servant (§ 185) — Injuries to Servant — Fellow Servants — Negligence-Railroad Conductor.
    Where it was the duty of a railroad conductor to read his orders, and then read them to the other train employes, but he read only the order given to the engineer which was different from the one given to him, he was negligent in ordering a movement according to the order g'iten to the engineer.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 385-421; Dec. Dig. § 185.]
    4. Evidence (§ 78) — Presumption—Failure to Produce Evidence.
    Where the evidence in an action for the death of a railroad engineer tended to show that an order was issued to him to pass another train at a certain place, and defendant possessed evidence which might have rebutted the presumption arising from the fact that it was written as read, that both the conductor and the engineer read the order in a certain way, defendant’s failure to produce such evidence would strengthen the presumption.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 98, 100; Dec. Dig. § 78.]
    5. Master and Servant (§ 227) — Injuries to Servant — Contributory Negligence.
    Where the death of an employé is solely the result of his negligent act of commission, his legal representative cannot recover damages for his death.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 668, 669; Dec. Dig. § 227.]
    6. Death (§ 99) — Damages—Excessive Damages.
    . In an action for the death of a railroad engineer in a collision resulting from the conductor’s negligence in ordering him to move his train, where deceased was 32 years of age and earning from $160 to $175 a month, a verdict of $10,000 for the widow and $15,000 to a daughter 9 years of age, in the absence of any evidence of passion or prejudice, would not be disturbed as excessive.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 125-130; Dec. Dig. § 99.]
    7.Appeal and Error (§ 877) — Parties Entitled to Allege Error.
    _ In an action by the widow and minor child against a railroad for the death of the husband and father, an engineer, the defendant could not allege error in that plaintiffs 'had the authority to. sue without joining the father and mother of deceased who were adjudged to have no right of recovery, and tnat it was unnecessary to join them, since no one could be injured by such error but the parents, and such injury, if any, did not concern the defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dec. Dig. § 877.]
    Appeal from District Court, Lavaca County ; M. Kennon, Judge.
    Action by Annie Williams, Louise Williams, and others against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiffs Annie and Louise Williams, and against the other plaintiffs and the defendants, and defendant appeals.
    Affirmed.
    ■ Patton & Schwartz, of I-Iallettsville, for appellant. R. B. Allen and Paulus & Rags-dale, all of Hallettsville, for appellees.
    
      
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   FLY, C. J.

This is a suit instituted by ap-pellees, Annie Williams, the widow, and Louise Williams, a minor daughter, of J. A.

"j'ed, in the employment of appellant as a locomotive engineer, who was killed in a head-on collision between his engine and another, brought about through the negligence of appellant’s conductor, who was in charge of train 83, on which deceased was the engineer, in ordering the latter to move, his train out of Tanglewood ■ station and proceed to Lexington, thus causing a collision between said train and train 82, just before the former arrived at Lexington. The cause was tried by jury, and resulted in a verdict for $25,000 in favor oí appellees, $10,000 being apportioned to Annie Williams and $15,000 to Louise Williams. After this cause had gone to trial, appellees filed a trial amendment in which it was alleged that John Williams and Mary Williams, who resided in the town of London, Dominion of Canada, were the parents of J. A. Williams, deceased, and asking that said parents be made plaintiffs in the suit. It was further alleged that J. A. Williams contributed nothing to their support, but devoted all of his earnings to appellees.

The first assignment of error assails the action of. the court in rendering judgment against the parents of the deceased because they were not parties to the suit, and had no legal notice of being made parties. The assignment is overruled. Railway v. Henry, 75 Tex. 220, 12 S. W. 828; Railway v. Taylor, 5 Tex. Civ. App. 668, 21 S. W. 975; Railway v. Renken, 15 Tex. Civ. App. 229, 88 S. W. 829; Taylor v. S. A. Gas Co., 93 S. W. 674. The law of 1909 (Acts 31st Leg. [1st Called Sess.] c. 10), relating to employes of railroad companies (articles 6648 to 6652, inclusive, Rev. Stats. 1911), has not changed the law embodied in articles 4698 and 4699, R. S. 1911, except to give the next of kin dependent on the dead employe a right of action.

The court charged the jury as follows; “If you believe from the evidence that on or about the 23d day of July, A. D. 1910, J. A. Williams was in the employ of the defendant as a locomotive engineer operating an engine drawing a freight train of the defendant, known as train No. 83, and you also believe from the evidence that the engine which the said J. A. Williams was operating collided with another engine drawing1 another freight train of the defendant, known as train No. 82, going in an opposite direction near the station of Lexington, and that as a result of said collision said J. A. Williams sustained injuries from the effects of- which he died on said date, and if you also believe from the evidence that A. T. Moffett was on said date an employe of defendant as conductor of said train No. 83, and if you also believe from the evidence that said Moffett as such conductor of said train No. 83 received an order from the defendant which required him to hold said train No. 83 at the station of Tanglewood until 10:25 a. m. on said date to await the arrival there of said train No. 82, and that said Moffett, in disregard of said order, directed said J. A. Williams to leave said station of Tanglewood before 10:25 a. m. on said date, and you also believe from the evidence that it was the duty of said J. A. Williams to obey the instructions of said Moffett to leave Tanglewood, and that said J. A. Williams did obey said direction of said Moffett and left Tanglewood before 10:25 a. m. on said date, if you believe from the evidence that said Moffett did so direct said Williams to leave Tanglewood, and you also believe from the evidence that said Moffett was negligent in so directing said Williams to leave said station of Tanglewood before 10:25 a. m. on said date, if you find that said Moffett did so direct said Williams to leave said station, and that this negligence, if any, of said Moffett, was the direct and proximate cause of the death of the said J. A. Williams, and you also believe from the evidence that the plaintiff Annie Williams was the wife, and the plaintiff Louise Williams the daughter, of said' J. A. Williams, and have each sustained pecuniary loss by reason of the death of the said J. A. Williams, then I charge you that your verdict must be for said plaintiffs.”

That charge is assailed through the second and third assignments of error, as formulated into one proposition thereunder, on the ground that it submitted an issue to the jury as to whether or not it was the duty of the deceased engineer to obey the order of the conductor to move the train, when the uncontroverted evidence showed that the train order was superior to the order of the conductor. When train 83, on which deceased was the engineer, reached Tangle-wood, a station on the line of appellant, and had remained there 15 minutes, the engineer was ordered by the conductor to proceed to Lexington, a station south of Tanglewood, and he obeyed the order; and just before he reached Lexington he collided with another freight train, No. 82, going north, and was killed. It seems that at Rockdale, a station north of Tanglewood, the conductor and engineer each received an order. If the conductor ever read his, the evidence fails to disclose it. The engineer read his aloud in the hearing of the conductor, as follows: “No. 51, engine 40, will wait at Lexington until 10:05 a. m. for No. 82, engine 159. No. 82, engine 159, will wait at Lexington until 10:25 a. m. for No. 83, engine 119.” Train 83 was the one being run by the deceased engineer, and train 82 the one with which he collided. The conductor read the order received by the engineer at the same time he was reading it, and did not detect that it was read incorrectly. He stated: “He had a copy just like I had a copy, and I knew it because he read it to me, and I was looking over his shoulder at the time he read it.” The conductor told Overly, a brakeman, that his train was to proceed to Tanglewood and back in for No. 51, and would proceed to Lexington for 82.. “I told him they would wait there for us until 10:25.” The conductor stated that his order was the same as that of the engineer, and yet it does not appear that he ever read his order, and, when questioned on the subject, it was clear that his statement that the two orders were the same was because both were carbon copies. On being pressed on the subject, he said: “I mean when I state that, that this is the usual course, I mean carbon copies, that that is the usual way of doing it; I don’t know about this particular one.” He could well state that he did not know about this order, because in that one order IVas included orders to three different conductors and three different engineers, six in number, and, though it was within the power of appellant alone to show it, no effort was made to prove that all six copies were made at once from the same original. Appellant introduced no evidence whatever as to the contents of the order issued to the six men, except what it gathered from the conductor who is not shown to have ever read the order obtained by him. The circumstances tend to .show that he did not read his copy of the order, but only read the copy given to the engineer. From that order he and the engineer obtained the conviction that their train was to meet No. 82 at Lexington, and the jnry could well find that the order given to the engineer read to that effect. It would he a singular coincidence that both the conductor and engineer should read the order as ordering them to go to Lexington to meet No. 82, when it was to meet that train at Tanglewood. What became of the order to the conductor or the one to the engineer does not appear, and while we may infer that a certain order was presented to Moffett, the conductor, while he was testifying, where it came from or by whom it was signed and issued was not shown. If any of the orders were signed by the assistant superintendent of transportation, whose orders, according to rule 492, should be obeyed by enginemen, the evidence failed to indicate it.

Under the facts indicated, the jury could well find that the order given to the engineer of train No. 83 required him to meet train No. 82 at Lexington, and under those circumstances, in compliance with appellant’s rules, the engineer could only move the train under the orders of the conductor while at Tanglewood, and it was his duty to. obey those orders. There was ample evidence to raise the issue as to whether the engineer was not justified in moving the train under the orders of the conductor, and the second and third assignments are overruled.

If the order given the conductor was, as stated by him, like one that was shown him, it was different from the one given the engineer, and the conductor was guilty of negligence in ordering the train to leave Tanglewood. It was his duty to read his orders, and then read them to other em-ployés on the train. He seems to have read only the order given to the engineer, and he afterwards told a brakeman that it gave train 83 until 10:25 a. m. to get to Lexington, and the engineer told his fireman that he had until 10:25 to make Lexington. The engineer was justified in obeying the orders of the conductor.

The order introduced in evidence by appellant was not really addressed to train 83, but, in addition to mixing it with an order to train 51, it ordered train 82 to remain at •Tanglewood until 10:25 a. m. for S3. The order was in direct violation of a rule of appellant which it introduced in evidence, and which provided that train orders should “contain neither information nor instruction not essential to such movements.” The train order was confusing in this case because, as testified by Moffett, “there was not connection between the running time of train No. 51 referred to in the order and train No. 83.” The order was not shown to have been “issued by authority and over the signature of the assistant superintendent of transportation,” as required by appellant’s rule, nor was it shown to have been signed by any one. Appellant gave no information as to the order, although it had information in its possession as to what was contained in the original orders given the three trains, and the train order introduced by it was in no manner identified or verified by it as the one received by the dead engineer. If only one order was written in the office of the assistant superintendent, and all the orders received by the different trains concerned were carbon copies of that order, it could have shown it. But it was silent, and did not choose to let in the light on the • transaction.

There was evidence that tended to show that an order was issued to the engineer of train 83, commanding him to pass train 82 at Lexington. Appellant had in its possession evidence which might have rebutted the presumption, arising from the fact that both the conductor and engineer read the order in a certain way, that it was written as read by them, and a failure to produce such testimony would strengthen such presumption. Thompson v. Shannon, 9 Tex. 536; Bailey v. Hicks, 16 Tex. 222; Chandler v. Meckling, 22 Tex. 36; Pullman Car Co. v. Nelson, 22 Tex. Civ. App. 225, 54 S. W. 624; Fant v. Sullivan, 152 S. W. 515.

The fifth and seventh assignments of error are followed by one proposition which is to the effect that, where the death of ah employé “is solely the result of his negligent act of commission,” his legal representatives cannot recover damages for his death. That is a correct proposition of law, but it is not sustained by the evidence, which showed that the death of J. A. Williams was caused by the negligence of appellant, as indicated by our conclusions of fact herein set forth.

The sixth and eighth assignments assail the verdict on, the ground of its exces-siveness. If the wife had sued alone and had obtained a verdict for $10,000, it would not have been considered excessive, nor if the little girl, nine years of age, had sued alone and recovered $15,000, would that be considered excessive for the death of a man, her father, 32 years of age, and earning from $160 to $175 a month. The verdict may appear large in the aggregate, but, considered in the light of all the evidence, this court fails to discover any evidence of passion or prejudice on the part of the jury, and it will not be disturbed.

In the argument with which the brief is closed, it is the contention of appellant that appellees had the authority to sue without joining the father and mother of the deceased as parties, and that it was unnecessary, if not erroneous, to join them in the suit. Reasoning from appellant’s premises, no one could be injured but the parents, and we fail to comprehend its concern about that matter. It does not contend that it was injured by the joinder, and it has no right to be presenting what it may deem errors for parties with which it has no connection.

The court presented the issue of comparative negligence, as defined by tbe law of 1909, and no complaint is made of that charge. The jury evidently concluded that J. A. Williams was not guilty of any negligence contributing to his death, and there is evidence to justify that finding.

The judgment is affirmed.  