The court erred in the 4th paragraph of the court's main charge, for the reason that the court authorized the jury to find against plaintiff in error on the issue of discovered peril, regardless of the question of whether plaintiff in error's employees could have stopped the engine in question in time to have prevented injuring defendant in error, after the peril of defendant in error was discovered by the employees operating the engine in question, there being evidence raising the issue that after the plaintiff in error's employees discovered the defendant in error they could not, by the exercise of ordinary care on their part, have stopped the engine in time to have prevented striking defendant in error. M.K. T. Ry. Co. of Tex. v. Eyer, 96 Tex. 72; M.K. T. Ry. Co. of Tex. v. Eyer, 69 S.W. 453; M.K. T. Ry. Co. of Tex. v. James, 55 Texas Civ. App. 588[ 55 Tex. Civ. App. 588] 120 S.W. 269; H. T.C. Ry. Co. v. O'Donnell, 99 Tex. 636; Ft W. D.C. Ry. Co. v. Shetter, 94 Tex. 196; T. P. Ry. Co. v. Breadow, 90 Tex. 26. The court erred in refusing to give plaintiff in error's requested charge to find for defendant if, after plaintiff in error's employees discovered the peril of defendant in error, they could not have stopped the engine in question to prevent the accident.
— Appellee was not guilty of contributory negligence as a matter of law under the testimony of herself and witnesses. International G. N. R. Co. v. Tinon, 117 S.W. 936; Missouri, K. T. Ry. Co. v. James, 55 Texas Civ. App. 588[ 55 Tex. Civ. App. 588]; Frugia v. Texas Ft. S. Ry. Co., 36 Texas Civ. App. 648[ 36 Tex. Civ. App. 648]; Gulf, C. S. F. Ry. Co. v. Coleman, 51 Texas Civ. App. 415[ 51 Tex. Civ. App. 415]; Texas Central R. Co. v. Randall, 51 Texas Civ. App. 249[ 51 Tex. Civ. App. 249]; Chicago, R.I. P. R. Co. v. Shannon, 50 Texas Civ. App. 194[ 50 Tex. Civ. App. 194]; Gulf, C. S. F. Ry. Co. v. Grisom, 36 Texas Civ. App. 630[ 36 Tex. Civ. App. 630]; Gulf, C. S. F. Ry. Co. v. Gasscamp, 69 Tex. 549; Choate v. San Antonio A. P. R. Co., 90 Tex. 88; Houston T. C. R. Co. v. Boozer, 70 Tex. 530; Houston T. C. R. Co. v. Simpson, 60 Tex. 103; Galveston, H. N. R. Co. v. Olds, 112 S.W. 787. KEY, ASSOCIATE JUSTICE. —
If they are to be taken to hold, in the absence of express statute, that it is contributory negligence as a matter of law, for the driver of an automobile not to stop, look and listen before using a highway crossing, without regard to whether ordinary prudence would require such a course, they are contrary in spirit to the rule announced by the superior authority of the supreme court of the United States (Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 12 Sup.Ct. 679, 36 L.Ed. 485) are against the weight of general decision (Texas, etc., Ry. Co. v. Hilgartner [Tex.Civ.App.], 149 S.W. 1091; Pendroy v. Great Northern Ry. Co., 17 N.D. 433, 117 N.W. 531; Spencer v. New York Central H.R. Co., 123 App. Div. 789, 108 N.Y.Supp. 245; Bonert v. Long Island R. Co., 145 App. Div. 552, 130 N.Y.Supp. 271; Hartman v. Chicago G.W. Ry., 132 Iowa 582, 110 N.W. 10; Louisville N.R. Co. v. Lucas, 99 S.W. 959, 30 Ky. Law Rep. 539; Vance v. Atchison, etc., Ry. Co., 9 Cal.App. 20, 98 P. 41; Missouri, etc., Ry. Co., v. James, 55 Tex. Civ. App. 588, 120 S.W. 269; Chesapeake O.R. Co. v. Hawkins (Ky.), 124 S.W. 836), and are in conflict with the settled rule in this state. Mason v. Northern P. Ry. Co., 45 Mont. 474, 124 P. 271; Sprague v. Northern P. Ry. Co., 40 Mont. 481, 107 P. 412; Hunter v. Montana Central Ry. Co., 22 Mont. 525, 57 P. 140.
t Cotton Mills Co., 77 So. 995; Edwards v. Ernest, 89 So. 729; Standridge v. Martin, 84 So. 266; Tom Reed Gold Mines Co. v. Morrison, 224 P. 822; Cooper v. Kelley, 198 S.W. 94; Williams-Nichols Dry Goods Co. v. Wallace, 219 S.W. 732; Pekin Stave Manufacturing Co. v. Ramey, 147 S.W. 83; Williams v. Cantwell, 170 S.W. 250; Murphy v. Shaffer et al. (Cal.), 208 P. 1003; M.H. Boals Planing Co. v. Railway Co., 211 Ill. App. 125; Foglio v. City of Chicago, 229 Ill. App. 472; Emery Dry Goods Co. v. De Hart, 130 Ill. App. 244; Mithen v. Jeffery, 102 N.E. 778; Rudd v. Jackson, 213 N.W. 428; Ryan v. Trinkle, 200 N.W. 318; Sawyer v. Arnold Shoe Co., 38 A. 333; International Co. v. Clark, 127 A. 647; Trembly v. Harnden, 38 N.E. 972; O'Brien v. Hencken Willenbrook Co., 158 N.Y.S. 200; Ross v. Williamette Valley Tr. Co., 248 P. 1088; Lenahan v. Pittston Coal Mining Co., 70 A. 884; Pewitt-Spurr Co. v. Woodall, 90 S.W. 623; Lange v. Lawrence, 259 S.W. 261; Spinney's Admx. v. Hooker Son, 102 A. 53; Rinehardt v. Dennis, 120 S.W. 269; Adams v. Cline Ice Cream Co., 131 S.E. 867; Stewart v. Brune, 179 F. 350; James Stewart Co. v. Newby, 266 F. 287. (2) The court erred in admitting incompetent, irrelevant and immaterial testimony on the part of the plaintiff, over the objection and exception of the defendant at the time. (a) It was error to permit Barth Staehlin, elevator inspector, to testify concerning the condition of the elevator gate at the time of the accident, when he had not examined it since May 3, 1926, and when the inspection records showed that a certificate of inspection had been issued on July 31, 1926, the accident occurring August 16, 1926.
the deceased had ever received anything of value from her father or a reasonable probability that he would have contributed anything of value to her had he lived. See also Missouri, K T Railway Co. of Texas v. James, 55 Tex. Civ. App. 588, 120 S.W. 269 (1909). In Carlisle, the opinion is silent on the evidence, if any, that was developed showing entitlement or non-entitlement to pecuniary loss based upon a history of support.
The elements of discovered peril involve the exposed condition of the plaintiff, its discovery by the defendant in time to avert injury by the use of all means at his command commensurate with his own safety, and the failure to use such means. These principles are maintained and well discussed in the following cases and many others: Missouri, K. T. Ry. Co. v. Eyer et al., 96 Tex. 72, 70 S.W. 529; Northern Tex. Trac. Co. v. Weed, Tex.Com.App., 300 S.W. 41; Missouri, K. T. Ry. Co. v. James et al., 55 Tex.Civ.App. 588, 120 S.W. 269; Texas P. Ry. Co. v. Breadow et al., 90 Tex. 26, 36 S.W. 410. Our consideration of this case has brought us inevitably to the conclusion that, if not wholly undisputed, the evidence is such that reasonable minds could not differ in the conclusion that appellant was guilty of contributory negligence which proximately caused his injury; that appellee Cook did not discover the perilous situation of appellant in time to have averted the injury by the use of all means at his command and that he utilized every means at his command in an effort to do so. Such being our conclusions it follows that, in our opinion, the trial court did not commit error in giving to the jury the peremptory instruction to return a verdict in favor of the appellees.
But it is a familiar rule of decisions of this state that an adult child will not be allowed to recover for the death of his parent so caused unless it can be shown by evidence that such child had a reasonable expectation of receiving from the parent support or aid of pecuniary value, notwithstanding the fact that at the time of the death of the parent he had reached his majority and such parent was no longer under legal liability to render him such aid. I. G. N. Ry. Co. v. De Bajligenthy, 9 Tex. Civ. App. 108, 28 S.W. 829; St. L. S.W. Ry. Co. v. Bishop, 14 Tex. Civ. App. 504, 37 S.W. 764; M., K. T. Ry. Co. v. James, 55 Tex. Civ. App. 588, 120 S.W. 269; T. N. O. Ry. Co. v. Mills, 143 S.W. 690. Substantially, the same interpretation of the federal statute was given by the United States Supreme Court in G., C. S. F. Ry. Co. v. McGinnis, 228 U.S. 173, 33 Sup.Ct. 426, 57 L.Ed. 785. That suit was by a widow for the benefit of herself and four children, one of whom was a married daughter, who was supported by her husband.
This feature is wanting in the charge given. In Missouri, K. T. Ry. Co. v. James, 120 S.W. 269, a charge similar in principle to the one in question was given, and was held error, on the ground that the charge permitted a recovery on the part of plaintiff against defendant, regardless of whether or not the servants of the company operating the engine of the train discovered deceased's peril in time to have stopped the train, and avoided striking deceased by the exercise of ordinary care, and by the use of the means at their command, but made the liability rest merely upon whether or not the servants of defendant exercised ordinary care to stop the train, by the means at their command, after discovering his peril. The same doctrine was held in Missouri, K. T. Ry. Co v. Eyer, 69 S.W. 453; s. c. 96 Tex. 72, 70 S.W. 529; see also International G. N. R. Co. v. Ploeger, 16 Texas Crt. Rep., 183; San Antonio A. P. Ry. Co. v. McMillan, 100 Tex. 562, 102 S.W. 103; Texas P. Ry. Co. v. Staggs, 90 Tex. 458; Texas P. Ry. Co. v. Breadow, 90 Tex. 26; Sanchez v. Railway Co., 88 Tex. 177.