
    GULF, C. & S. F. RY. CO. v. CARPENTER.
    (No. 5810.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 23, 1918.
    Rehearing Denied Feb. 27, 1918.)
    1. Trial t&wkey;252(ll) — Instructions — Conformity with Evidence.
    Where the evidence raised no issue of contributory negligence, it was not error to refuse an instruction thereon.
    2. Triad <&wkey;296(4, 5) — Instructions—Cube by Other Instructions.
    Error, if any, in failing to submit in main ■charge issue of contributory negligence must be deemed cured by the giving of two requested instructions on such issue.
    3. Appear and Error <&wkey;1070(l) — Harmless Error — Verdict—Apportioning Damages.
    In action for death of a servant, the employer cannot complain of apportionment of damages among all those having a right of action, since the lump sum judgment would protect it against any subsequent action.
    4. Trial <&wkey;336 — Verdict — Surplusage — Apportioning Damages.
    Where the jury, in action under federal Employers’ Liability Act (Act Oong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]), found lump sum verdict for the ad-ministratrix, its apportionment of damages among her and five children, if error, should be regarded as surplusage.
    5. Death <&wkey;99(4) — Excessive Damages.
    Verdict of $35,000 in favor of widow and five minor children for death of locomotive engineer 37 years old, in good health, earning $150 per month, with prospects of $200 per month, with life expectancy of 32 years, and devoted to his children, was not excessive.
    Appeal from District Court, Bell County; F. M. Spann, Judge.
    Action by Mrs. E. B. Carpenter, adminis-tratrix of E. B. Carpenter, deceased, against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, A. H. Culwell, of El Paso, and Chas. K. Lee, of Ft. Worth, for appellant. A. L. Curtis, of Bel-ton, and Winbourn Pearce, of Temple, for appellee.
   KEY, C. J.

Mrs. E. B. Carpenter brought this suit, as administratrix of the estate of her deceased husband, E. B. Carpenter, to recover damages on account of the death of her husband, she alleging that his death was caused by the wrongful and negligent conduct of the defendant, Gulf, Colorado & Santa Fé Railway Company. The suit was brought for the benefit of Mrs. Carpenter and five minor children of herself and E. B. Carpenter. The petition contained all the necessary allegations to warrant a recovery under the federal liability statute. The defendant answered by general and special exception, general denial, and plea of contributory negligence and assumed risk. There was a jury trial, which resulted in a verdict and judgment for the plaintiff for $35,000, apportioned as follows: $15,000 to Mrs. Carpenter, and $4,000 to each of the five minor children.

The defendant has appealed, and seeks a reversal upon several grounds, none of which presents new or difficult questions of law; and therefore, instead of spending time in a vain effort to convince every one of the correctness of our decision, we content ourselves with announcing our conclusions, without much elaboration, upon the points considered by us the most important. However, this course is not pursued for the purpose of gaining the approval of those who complain about long opinions in other peoples’ cases, but complain still more if the appellate court fails to discuss every question decided against them in their own cases.

1. The main charge of the court is assailed as being erroneous, because it contained nothing specifically submitting to the jury the question of contributory negligence. Appellee’s counsel make two answers to that criticism, both of which are believed to be sound, and which are: First, that the testimony did not raise the issue of contributory negligence, and therefore it was unnecessary to give any charge upon that subject; and, second, that the court gave two special charges upon that subject at the request of appellant, and therefore, if that issue was presented by the testimony, the requested instructions must be considered as supplements to the main charge, and as curing the omission complained of in the latter.

2. Unlike Lord Campbell’s Act, and the statutes of most of the American states, the federal liability act, under which this suit was prosecuted, does not require the jury to make any apportionment of the damages awarded by the verdict. In this case, in obedience to the charge of the court, the jury made such apportionment, which counsel for appellant contend constitutes reversible error. At least two answers may be made to that contention, and these are:

First. It is quite certain that appellant was not injured by the apportionment referred to. According to the clear and undisputed testimony, if appellant was liable at all, such liability was for the benefit of those among whom the apportionment was made; and the judgment will protect appellant from any other claim asserted on behalf of either of them, based upon the fact that appellant had wrongfully caused the death of E. B. Carpenter. This being the case, it is • immaterial to appellant as to how much of the recovery is awarded to each beneficiary.

Second. The verdict reads:

“We, the jury, find for Mrs. E. B. Carpenter, administratrix, the sum of $35,000, as damages, and apportion the same as follows: To Mrs. E. B. Carpenter, $15,000; to Allen Carpenter, $4,000; to Charles Carpenter, $4,000; to George Carpenter, $4,000; to Carney Carpenter, $4,-000; and to Blanche Carpenter, $4,000.”

The judgment follows the .verdict, and awards to the plaintiff, Mrs. Carpenter, the sum of $35,000; and follows tliat up with the. declaration that $15,000 of the amount recovered is for the use and benefit of the plaintiff, Mrs. E. B. Carpenter, and that $4,000 of the amount recovered is for the use respectively of each of the children. Hence it appears that the verdict and judgment award to Mrs. Carpenter, as administratrix of her husband’s estate, a lump sum of $35,000, and if the court and jury had no power to apportion the same as between Mrs. Carpenter and the other beneficiaries, such apportionment should be treated as surplusage by any other tribunal having authority to determine the respective rights of the parties referred to. But in either aspect the fact remains that the judgment here complained of will always protect appellant against a subsequent claim founded upon the same cause of action ; and therefore appellant is not injured, even though the apportionment may have been improperly made.

3. Two other special charges were asked upon the subject of contributory negligence, both of which were properly refused, because there was no testimony raising the issues covered by those instructions.

4. Several assignments are* predicated upon rulings of the trial court in reference to the admissibility of testimony, all of which have been duly considered and are overruled.

5. The verdict of the jury is assailed as being grossly excessive, but the assignments referred to are overruled. The proof shows that the deceased was about 37 years of age, in good health; had been in the railroad service for a number of years; had been promoted to the position of engineer; that he was then earning about $150 per month, and that the same would have probably increased to from $200 to $225 per month; that his life expectancy was 32 jmars; that he was devoted to his children, and rendered them valuable service in the way of advice and training. Considering that testimony, and the evidence presented as to the cost of annuities, we do not think it can be properly said that the amount of the verdict indicates that the jury was actuated by some improper motive; and therefore we do not feel justified in holding that it should be set aside.

6. The proof shows that E. B. Carpenter’s death was caused by a collision between two trains, one of which he was operating as engineer. He received a written order from appellant, directing him to meet the local freight train No. 71 at Mullin, a station on appellant’s road between Brownwood and Temple. While rounding a curve, about five miles before reaching Mullin, his train ran into collision with train No. 71, which he had orders to meet at Mullin, and he was instantly killed. The proof justified the finding of the jury, and we adopt the same, to the effect that the death of E. B. Carpenter was caused by the negligent conduct of appellant, and that he was not guilty of contributory negligence.

Such being the material facts, and as appellant has not pointed out any material error committed in the court below, the judgment appealed from should be affirmed; and it is so ordered.

Affirmed. 
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