Fort Worth Street Railroad v. Witten

Acker, Presiding Judge.

Thomas Crawford Witten, an infant about four years of age, brought this suit by his next friend, Thomas Witten, against appellant to recover damages for personal injuries alleged to have been sustained in consequence of the negligence of appellant’s agents and servants. It was alleged that the plaintiff’s injuries were permanent, making him a cripple for life. Damages were laid at $12,000.

Appellant answered by general denial and plea of not guilty. The jury returned a verdict in favor of appellee for seven thousand dollars, and judgment was entered thereon, from which this appeal is prosecuted.

Appellant requested the following special charge, which was refused, and this is assigned as error:

“If you find for plaintiff you can take into consideration the loss of plaintiff’s services only from its arrival at majority, if you believe the next friend of plaintiff, Thomas Whitten, had assumed towards the plaintiff the relation of father by adopting plaintiff, although such adoption may not have been according to law, it being the law that those standing in the relation of father to a minor are alone entitled to the services of such minor.”

The plaintiff, who had no living parent, had been placed “by some church people” in the care and custody of Thomas Witten when he was quite young. Witten received the child into his family, gave him his name, and provided and cared for him as his own, but did not formally adopt him in accordance with the provisions of law.

Under this state of facts, was the plaintiff entitled to recover for his diminished capacity to earn money during his minority, or was Thomas Witten alone entitled to recover the value of plaintiff’s service during his minority? If plaintiff’s father had been living there is no doubt that the right to recover damages for his diminished capacity to earn money during his minority would have been with the parent alone. Railway Co. v. Morin, 66 Texas, 225. But can one who stands temporarily in loco parentis, and who may abandon that relation at any time, and'upon whom there is no obligation, legal or moral, to maintain and support the infant, recover the value of an infant’s services during his minority, and thereby defeat the infant’s recovery for his diminished capacity to earn money during those years? To so hold would open a field for speculation in picking up orphaned waifs, permitting them to be exposed to injury, recovering for the loss of their services, and then throwing them back upon the charities of the world maimed and disabled for life.

The right of the parent to recover for the loss of the services of his minor child rests principally upon the doctrine of compensation. The parent being legally bound to support his infant child is held to be entitled to its services during minority, and may recover the value of such services when deprived of them by the wrongful act of another. Railway Co. v. Morin, supra.

Thomas Witten was neither morally nor legally liable for the support of the plaintiff. We are unable to conceive any reason in support of the doctrine that because a person of benevolent disposition had taken to his home and under his protection a homeless and orphaned infant and ministered to its necessities for a time, the infant would thereby be deprived of the right to recover compensation for personal injuries resulting in his diminished capacity to earn money in so far as such capacity was affected during his minority.

Under the second assignment of error it is contended that the court erred in refusing to give the following special charge:

“If you believe from the evidence that the injury to'the plaintiff under all the facts and circumstances in proof before you was through misfortune and misadventure, and that the defendant’s servants in charge of said car exercised under the circumstances ordinary care and diligence in the management and operation of said car at said time, then the jury are instructed that the plaintiff can not recover, and if you so believe find for the defendant.”

Upon the question presented in this charge the court in its general charge instructed the jury as follows:

“If you believe from the evidence that the plaintiff Thomas Crawford Witten while crossing the line of defendant’s railway was run against and knocked down by the mules drawing one of defendant’s cars, and that said car ran over plaintiff’s leg as alleged and injured him, and if you further believe that such injury was caused by the carelessness of the driver of said car, and that the plaintiff was at the time exercising that care which a person of his age would ordinarily use under like circumstances, and if you further believe that said injury might have been avoided by the use of ordinary care on the part of the driver of said car, you should find for plaintiff and assess his damages,” etc.

Again, “You are instructed that the defendant’s agent driving said car was only required to use such care and caution in driving the cars as a person of ordinary prudence performing the same service would usually exercise, and if you believe that the driver in charge of said car was at the time of the alleged injury using that degree of care which prudence required under the circumstances, and that the injury was not caused by negligence on his part, you should find for defendant.”

We think the charge given was a proper exposition of the law and that the court did not err in refusing to give the special instruction asked.

Under the third assignment it is contended that the verdict is contrary to the law and the evidence and is excessive. The court correctly instructed the jury as to the law applicable to the case, and we do not think the verdict contrary to the. law so given. We also think that the evidence sustains the verdict. It is true that there is some conflict in the evidence as to the negligence of appellant’s servant who was driving the car at the time appellee was injured, but we think the preponderance of the evidence supports the verdict.

Appellee’s injuries were very serious, making him a cripple for life. His suffering was intense and continued for many months.

Under the previous decisions of this court we can not say that the verdict was for an excessive amount. Ry. Co. v. Lowe, decided present term.

We are of opinion that the judgment of the court below should be affirmed.

Affirmed.

Adopted June 4, 1889.