Appellees, Jose Maria Escobedo and Antonio Silva, sued appellant, Pablo Baray, for damages on account of the death of their mother, whose death, they alleged, was caused by the negligence of appellant, in that he was the owner of the building in which appellees and their mother occupied rooms opening onto a balcony, and on or about October 29, 1922, appellant carelessly and negligently removed some of the floor from said balcony, leaving a large hole in front of the door leading from a room occupied by deceased, and, without any knowledge of said hole or the danger incident thereto, deceased stepped from the door and fell through the hole to the ground beneath, and was greatly injured, from which injury she died. Appellees further alleged that by reason of the negligence of appellant "plaintiffs have suffered the loss of their mother and her aid and assistance," and laid their damages at $10,000.
Appellant answered by general demurrer, general denial, and a special plea of contributory negligence on the part of the deceased.
Verdict and judgment for $1,500. Appealed.
First. The allegation, "plaintiffs have suffered the loss of their mother and her aid and assistance," is sufficient, in the absence of special exception seasonably urged and acted upon by the court, to permit the proof that the mother contributed pecuniarily to them.
And the fact that the mother, deceased, attended to the household duties, and that such services were of the value of $10 per week, are sufficient to support a verdict and judgment for actual damages in favor of her adult children. Missouri, K. T. Ry. Co. v. Butts,62 Tex. Civ. App. 539, 132 S.W. 88.
The evidence discloses that the plaintiffs, Jose Maria Escobedo and Antonio Silva, were the only living children of deceased; that they were living together upon the upstairs floor of a building owned by the defendant Pablo Baray; that there was a balcony extending entirely around the building outside this door, and that a door opened out onto it from the rooms so occupied; that a carpenter employed to repair this balcony by defendant, had taken up a number of planks in front of the door in question, thus leaving an opening through the floor, and that the deceased stepped out of their door and fell through this opening to the ground, and died a short time thereafter.
Second. It is urged that the uncontradicted evidence shows that the deceased was guilty of contributory negligence which was the proximate cause of the accident, and for that reason no recovery can be had. In support of this appellant quotes the following from the testimony of the carpenter who removed the planks:
"The opening was not directly in front of this woman's door; it was a little to one side. About 8 inches of the opening was directly in front of her door. I had conversation with the woman that fell through there at the time. She was inside of the door — the screen door, and I was on the outside. She asked me if I was going to take it all down, and I told her, `No.' only that portion of the balcony. I warned her of the condition of the floor, and she knew *Page 1101 about it, because I told her before. She was there when I commenced to take up the old boards. We were talking about the work going on there and taking up the boards, and I turned around, and then she came out and fell through."
On cross-examination, he testified:
"I told this woman again I was going to take up those boards, and I took the boards up. She was standing at the door talking to me when I took the boards up. She knew I had taken the boards up."
In this respect appellant asserts, in argument, that this witness had no interest in the result of the suit, nor was there any testimony to contradict or impeach his statement, and that for such reason it constitutes proof of facts in support of his plea of contributory negligence. There is testimony which, when followed to its ultimate analysis is a direct and positive refutation of this witness' testimony. For instance, three of the other parties living in rooms adjacent to the work being done testified that they had not been notified of the work, nor warned of the danger. A witness who lived next door, and who had no interest in the result of the suit, testified.
"I know that old lady that was killed. * * * I saw her come to the door with a quilt in her hand, and then just disappear. It was her custom going out every morning and hanging the quilts in the sun on the balcony. I ran to the fence to see what had become of her, and she was laying on the cement, * * helped to carry her in the house," etc.
These circumstances are sufficient to contradict the evidence of the carpenter, and to constitute it a question for the jury to determine under the facts, especially in view of the fact that the carpenter might be personally liable for damages under the facts revealed by this record, and for this reason the jury could properly have discarded his testimony.
Third. It is urged that the carpenter was an independent contractor, and for that reason appellant cannot be held in damages therefor. This theory was not pleaded, nor was such an issue submitted or requested to be submitted so the rule that "litigants are restricted to the theory upon which the cause was prosecuted or defended in the court below" is applicable here. Boatner v. Providence W. Ins. Co. (Tex.Com.App.)241 S.W. 136.
Fourth. The evidence is that the deceased fell on the cement, and did not speak afterward, and died shortly thereafter, so there is nothing in the proposition that there is no direct evidence that the mother died as a result of the injuries received as a result of the fall.
Five and seven are that "the evidence is insufficient to support the verdict in that there is no direct evidence of her age or life expectancy," and that the verdict is excessive. The evidence is as to age of deceased sufficient for the Jury to have found it to be 65 years, and it was not necessary to introduce mortality tables as to life expectancy, as the jury may determine this by the age and physical condition of deceased. Gulf, C. S. F. Ry. Co. v. Compton,75 Tex. 667, 13 S.W. 667.
A verdict and judgment for $1,500 is not excessive under the facts of this record. Finding no error, the cause is affirmed.