GULF, COLORADO, AND SANTA FE RAILWAY COM- [91 TEXAS, 310.] DAMAGES-NEGLIGENCE-WRONGFUL EMPLOYMENT AND DEATH OF MINOR.-There can be no recovery by parents for the wrongful employment of their minor son in a dangerous service, without their consent, and his consequent death, if such death was instantaneous. DAMAGES-NEGLIGENCE-WRONGFUL EMPLOYMENT AND DEATH OF MINOR-CONTRIBUTORY NEGLIGENCESTATUTE.-As a father's right to recover for the wrongful employment of his minor son, in a dangerous service, without his consent, and his consequent death, depends upon the statute, which imputes the contributory negligence of the deceased son to the father, it is error, where the death was instantaneous, to give instructions authorizing a recovery, whether the deceased was, or was not, guilty of contributory negligence. J. W. Terry and Charles K. Lee, for the appellant. A. M. Monteith, for the appellee. 811 DENMAN, A. J. In this cause the court of civil appeals have certified to this court the following questions and explanatory statement: "This is a suit by W. T. Beall and wife against the appellant to recover damages resulting from the death of their minor son, W. C. Beall. W. C. Beall was instantaneously killed by being run over by one of the cars of appellant's road. At the time he was killed, he was acting as a brakeman in the employ of the appellant, and was a minor, about nineteen years of age. He was on top of the car that was being switched, and, by reason of some movement or jar or jerk of the car, he fell from the top of the car to the track below, and was run over, crushed, and killed. Plaintiffs brought this suit to recover damages resulting from the death of their minor son, alleging that he was a minor at the time, and that that fact was known to the appellant, and that he was employed by the appellant without their consent, and that the business of brakeman, in which he was engaged, was dangerous. There is evidence which tends to establish these facts. The jury found that he was a minor when so employed, and was wrongfully employed by the defendant, and assessed the damages at fifteen hundred dollars. "There is an assignment of error, in which appellant complains of the following charge: 'If you find that the son was a minor, and employed without the consent or acquiescence of the father in a dangerous employment, and that defendant's f servants knew he was a minor, or ought to have known it, from his youthful appearance, then plaintiffs would be entitled to recover, whether the son was guilty of contributory negligence or not, or whether the engine and appliance were sound and suitable for the business or not, or whether said employés were skilled and competent or not. The wrong, if any, consists under such supposed state of facts, if you find them proved, in the unauthorized employment of a minor, if you find from the testimony that there was such unauthorized employment of plaintiff's minor son.' "In this connection it is well to say that there is some evidence in the record which tends to show that the deceased was guilty of negligence of such a character that may have contributed to his injuries, and of such force as would have authorized the court below to have submitted to the jury the issue of contributory negligence. It further appears from the record that the jury, in making up their verdict, considered the value of the services of the deceased minor son. "Now, in view of this statement, the court of civil appeals for the third supreme judicial district certifies to the supreme court of Texas the following questions: 1. The deceased being instantaneously killed, could the parents, at common law, recover for the value of the services of the minor child after his death? 812 2. Was it error, in view of the instantaneous death of the minor, and under the facts as stated, for the court to give the charge quoted?" In Baker v. Bolton, 1 Camp. 493, decided in 1808, Lord Ellenborough said that "in a civil court the death of a human being could not be complained of as an injury." In adhering to the broad principle thus announced, Pigott, B., in Osborn v. Gillett (1873), L. R. 8 Ex. 88, which was a suit brought by the father to recover for the loss of services of his daughter whose death had been occasioned by the negligence of defendant's servant, said: "By the third plea the defendant says that she was killed on the spot, and the first question is, whether this plea affords a good defense in law to an action by a master for damage sustained by reason of the death of his servant. It may seem a shadowy distinction to hold that when the service is simply interrupted by accident resulting from negligence the master may recover damages, while in the case of its being determined altogether by the servant's death from the same cause no action can be sustained. Still, I am of opinion that the law has been so understood up to the present time; and if it is to be changed it rests with the legislature and not with the courts to make the change. "It is admitted that no case can be found in the books where such an action as the present has been maintained, although similar facts must have been a matter of very frequent occurrence. This alone is strong to show that the general understanding had been to the effect laid down by Lord Ellenborough, in 1808, in Baker v. Bolton, 1 Camp. 493. This rule has been generally followed by the American courts, though some vigorous protests have been made against it, and none of the various reasons assigned therefor seem entirely satisfactory. No useful purpose would be subserved by an attempt to add anything to what has been said in the well-considered opinions cited and commented upon by Mr. Tiffany in his work entitled "Death by Wrongful Act," sections 1 to 18, where an interesting and exhaustive discussion of the question will be found. After a careful examination, we are of opinion that, though the reason for the original adoption of the rule announced by Lord Ellenborough is involved in doubt and obscurity, still the rule itself is a well-established principle of the "common law of England" adopted in this state by act approved January 20, 1840; and we feel bound thereby. We therefore answer the first question certified in the negative, and, since the father's right to recover depends upon the statute which imputes to him the deceased son's contributory negligence, the second question certified must be answered in the affirmative. DEATH DAMAGES-NEGLIGENCE – INSTANTANEOUS STATUTE.-Under a statute providing that actions for personal injury shall "survive," the fact that death was instantaneous has been held fatal to the maintenance of an action for an injury to a relative causing death, on the ground that, unless there is some interval between the injury and the death, the deceased could not have had a cause of action, although a very brief interval would suffice: See monographic note to Carey v. Berkshire R. R. Co., 48 Am. Dec. 635, on actions for injuries to relatives. GALVESTON, HARRISBURG AND SAN ANTONIO RAILWAY COMPANY v. GORMLEY. [91 TEXAS, 393.] OF RAILROADS EMPLOYES-NEGLIGENCE-DEGREE CARE-ERRONEOUS INSTRUCTION.-In an action against a railroad company to recover damages for an injury to an employé, alleged to have been caused by the company's negligence, it is error to instruct the jury that "the degree of care of all parties is higher when the lives and limbs of themselves or others are endangered than in ordinary cases." RAILROADS-EMPLOYES-NEGLIGENCE-DEGREE OF CARE-QUANTUM OF DILIGENCE.-The law imposes upon a railway company the exercise of ordinary care to provide for each and all employés, machinery, roadbed, and appliances reasonably safe, and to exercise like care to maintain them in that condition; but the degree of care does not vary with the increase or diminution of danger. It continues to be ordinary in degree, though the quantum of diligence to be used differs under different conditions. RAILROADS - EMPLOYES - NEGLIGENCE-ORDINARY CARE-ERRONEOUS INSTRUCTION.-To define "ordinary care," in an action against a railroad company for negligently injuring an employé, as that degree of care which may reasonably be expected of one in the situation of the person injured, is erroneous, so far as it applies to the care required of the company. NEGLIGENCE-DEGREE OF CARE-HOW FIXED.-The degree of care is fixed by the relations of the parties, as master and servant or carrier and passenger, but the quantum of vigilance to be exercised must be determined by the circumstances; more care must be used whenever there is greater danger. RAILROADS - EMPLOYES AND STRUCTURES — ORDINARY CARE-NEGLIGENCE-ERRONEOUS INSTRUCTION.-In an action against a railroad company for negligently injuring one of its employés, it is error to instruct the jury that it is the duty of the company "to do everything that can reasonably be done" for the safety of its employés, and to have the structures along its line "to be reasonably safe." The law does not require a railroad company, as a duty to employés, "to have the structures to be reasonably safe," but simply requires that it should exercise ordinary care to have them in that condition. RAILROADS-NEGLIGENCE-STRUCTURES AND APPLIANCES-ORDINARY CARE.-A railroad company is required to use ordinary care to furnish structures and appliances which are reasonably safe, and to use such care to maintain them in that condition. RAILROADS — RULES — KNOWLEDGE, PROOF-ERRONEOUS INSTRUCTION.-If a railroad company has rules and regulations for its employés, it is not necessary, in an action against the company for fatal injuries to an employé, that the evidence should show that he had knowledge of such rules, but, in the absence of proof to the contrary, he will be presumed to have known them. Hence, an instruction requiring the company not only to prove that the deceased employé knew such rules, but to prove that it was insisting upon and enforcing them, is error, for if the plaintiff relies upon the abrogation of the rule by its nonenforcement, he must prove it. INSTRUCTIONS-REFUSAL OF NOT ERROR, WHEN.There is no error in refusing to give instructions which have already been submitted to the jury. WITNESSES - OBJECTION TO WHOLE ANSWER IS PROPERLY OVERRULED, WHEN.-Though part only of a witness' answer is objectionable, it is not error to overrule an objection to the whole answer, if the objector does not separate the admissible part from the inadmissible, as he should do. The court is not required to do it. Action brought by Lillie Gormley and others against the defendant railway company to recover damages for the death of D. J. Gormley, an employé of the defendant, which death was alleged to have been caused by the negligence of the company. A judgment for the plaintiffs was affirmed on appeal to the court of civil appeals, and the defendant sued out a writ of error. McNeal, Harwood & Walsh, and A. L. Jackson, for the plaintiff in error. A. B. Davidson and Atkinson & Abernethy, for the defendants in error. 398 BROWN, A. J. This suit was instituted by Lillie Gormley-now Burnett-in her own right and as next friend of her infant son, D. J. Gormley, and by Thomas and Ann Gormley, to recover of the railroad company damages for the death of David Gormley, who was the husband of Lillie and the father of the minor, D. J. Gormley, and was the son of Thomas and Ann Gormley. During the pendency of the suit, Lillie Gormley intermarried with V. D. Burnett, who joins her in this action. The court of civil appeals files the following conclusions of fact: "On the twenty-seventh day of August, 1892, the appellee Lillie Burnett was the wife of D. J. Gormley; the appellee David J. Gormley is his son, and Thomas and Ann Gormley are deceased's parents. On the date above mentioned, D. J. Gormley was in the employ of appellant company in the capacity of a brakeman on one of its freight trains, which was then being run over its road; that on the night of the day stated D. J. Gormley was sitting on top of one of the cars of said moving train in the performance of the duty of his employment, and that while so riding upon said car in his place of duty, he was, without any fault or negligence on his part proximately contributing to the accident, struck by a spout attached to one of appellant's water tanks, which spout the appellant negligently allowed to be and remain out of repair and to overhang its railroad track and car upon which Gormley was sitting, and the force of the blow from said spout knocked him off the car, and he was run over by the cars attached to said train, and thereby so injured that he died on the following day. That by reason of his death, which was proximately caused by said negligence of appellant, his wife Lillie was damaged in the sum of two thousand five hundred dollars, and his son David J. in the sum of four thousand dollars." Upon a trial before a jury, verdict was returned and judgment |