The court below in effect charged the jury, that if the appellant by its servants could, by the exercise of care, prudence, and watchfulness on their part, have seen the peril and danger in which the deceased, Mrs. Younger, was placed, and after so seeing could, by the exercise of proper care and caution, have avoided the collision by which she was killed, then to find for the plaintiff. The objection to this charge is, that there is no pleading upon which it is based. It is true that the petition alleges that the collision resulting in the death of Mrs. Younger was caused by the negligence of the appellant in operating its trains, and then it continues to set out in detail the acts of negligence relied upon as the basis of recovery. These acts stated do not set up and aver any fact tending to show that the appellant could have avoided the collision by the exercise of proper care after it discovered the dangerous and perilous situation of Mrs. Younger. It seems that Mrs. Younger was killed at a public crossing in the town of Ballinger by the locomotive of the appellant's road, when she was attempting to cross the railroad track at a public crossing in a buggy. The acts relied upon as negligence, as set out in the pleading, are that the appellant was operating and running its train across that public crossing at a reckless and high rate of speed without a proper lookout, and without giving any warning or signal of its approach, and that the approach to its track on which it was operating the train was obstructed by box-cars situated upon a side track.
The case in 24 Southwestern Reporter, 976 (Railway v. Taylor), and the cases there cited, where the court held that a simple averment of negligence upon the part of the railway company was sufficient to let in proof of whatever character of negligence the plaintiff relied upon as the basis for a recovery, are distinguishable from this case, for the reason that in those cases there was no specific ground of negligence alleged, and the rule, as we understand it, upon this question, as cided by this court and in effect stated in Railway v. Scott, is, that where the petition alleges that the injury was the result of negligence, and then continues to set up the specific acts of negligence relied upon, it will be confined to those acts, and the general allegation of negligence will be controlled by the special acts of negligence averred.
This suit was brought by the appellee, Dr. Younger, in his behalf and for that of his minor daughter, Della Younger, and on behalf of Mr. Manning, the father of deceased, Mrs. Younger, the wife of Dr. Younger, who was killed by the collision in question. The petition *Page 146 avers that Della Younger is a child of Dr. Younger, but it nowhere avers that she is the child of his deceased wife, Mrs. Younger, nor does it state facts from which this court would be warranted to infer that Mrs. Younger was her mother. The verdict and judgment of the court below find in favor of Dr. Younger and Della Younger, stating the amount to which each is entitled. The defect in the pleading in failing to state the relationship of Della Younger to the deceased was brought to the attention of the court below by a demurrer, upon which the court ruled and held it to be sufficient. This ruling of the court is clearly erroneous. In order to entitle one to recover under our death statute, the facts showing the right that so authorizes a recovery must be pleaded. The relationship of Della Younger to the deceased was the essential fact upon which her right to recover is based. If the relationship within the degree mentioned by the statute does not exist, she certainly would not have had any interest in the life of the deceased to that extent that would authorize her under the law to recover. The very life of her case depends upon this fact, and, according to the doctrine of the case of Railway v. Vieno, 7 Texas Civil Appeals, 347, the facts showing her right to recover must be alleged.
The court gave the following charge, which is assigned as error: "You are further instructed, that the law requires those in charge of railway engines and trains to use great care and prudence in operating them, so as to avoid damage and injury to the person or property of other people, and if by want of use of such care and prudence injury is inflicted on others, without the fault of such others, such companies must pay for such injuries and damage."
The appellant requested the following charge, which was refused: "It is the duty of persons operating a railroad train across a public crossing to use ordinary care to prevent collisions with persons or vehicles passing over the track at such crossing; but it is also the duty of persons approaching such crossing to use the same ordinary care to prevent collisions with trains. The duties of each of the parties — i.e., of those operating the train and those about to pass over the crossing — are equal and reciprocal, and if a collision occurs and both parties fail in their duty as defined above, neither can recover from the other. By ordinary care, as here used, is meant such care as a reasonably prudent person would have exercised under like or similar circumstances."
It was error to give the charge as submitted to the jury, and it was error to refuse the charge requested. This question is fully discussed by the Supreme Court in Railway v. Smith,87 Tex. 348. For the errors discussed, the judgment of the court below will be reversed and the cause remanded.
Some of the other questions presented in the record upon which this court is asked a ruling are presented in the Shieder case (88 Tex. 152), a companion case to this, now pending in the Supreme Court, and will doubtless there be ruled upon before this case is again *Page 147 disposed of in the court below; and we desire here to say that those assignments of error that we have not discussed have been examined, and we do not think they present reversible error, but in view of another trial we call the court's attention to some of the questions that we are asked to rule upon.
The charge requested in the thirty-fifth assignment of error was, in effect, given in a special charge at the instance of the plaintiff, as shown by page 199 of the record.
As to the question presented in the forty-second assignment of error, in reference to the motion to strike out the deposition of Mrs. Odom, we desire to say that it is likely this question will not occur upon another trial, as the plaintiff will there evidently remove the objection by having the officer, if still in office, to amend, under leave of the court, the affidavit by attaching to it his seal, or by proof being made that the affidavit was actually made as required by law, which we think would be permissible to show.
The point with reference to the joinder of Mr. John Manning as a party plaintiff is probably eliminated, as no recovery was had in his favor; but if the question should again arise, we think that he could not be made a party plaintiff by Dr. Younger without his consent, unless he is brought in as a defendant in the case by the pleadings of the plaintiff, so that he may be given an opportunity under the statute to assert his right if he so desires. Under the law, those entitled to recover are those that have sustained some injury or loss by reason of such death (Railway v. Henry, 75 Tex. 224), and the facts may bear out the proposition that Mr. Manning does not fall within this category. If such is the case, he would not be entitled to recover anything, although he may be improperly brought into the case by the plaintiff, and under such circumstances, making him a party to the record would simply be a question of costs, and would not affect the right of Dr. Younger to recover what the evidence may show he may be entitled to.
We do not think the objections to the depositions of witnesses Middleton and Turner present any error, and they are not, in our opinion, leading and objectionable for the reasons given. The allegation with reference to the amount of injury and damages sustained by Dr. Younger and Della Younger was sufficient. The testimony of Dr. Younger and Dr. Fowler, objected to in the sixteenth, seventeenth, twentieth, and twenty-first assignments of error, was admissible; also, the testimony of Willingham, Patterson, and Weeks was admissible. The remarks charged to one of the counsel for appellee in his address to the jury will probably not again be repeated upon another trial, and in this connection we desire to say that in cases of this character, where the law does not determine or establish any fixed measure of damages, so far as the amount that may be recovered is concerned, counsel in their remarks to the jury ought to be very careful in keeping within the record in discussing the facts and in abstaining from *Page 148 dealing in argument that would be calculated to call the jury's attention to facts not properly in evidence. The policy of this court is to condemn any argument that is not within the facts, and in cases of this character, sounding in uncertain damages, it has been frequently held that remarks of counsel outside of the record may have influenced the verdict of the jury, when such ruling would not have been made in cases of a different character.
So much of the question as is presented in the fortieth assignment of error as complains of the ruling of the court in refusing the answer of Dr. Rape to the question asked as seeks to prove by him that he may have been mistaken wherein he testified that he heard the bell ring, we think should have been admitted. It was proper to ask the witness this question on cross-examination. In view of a reversal of the judgment, it becomes unimportant for us to rule upon the action of the court in overruling the application for a continuance, and upon the facts of the case. Those assignments of error that relate to the charge of the court and to the refusal of the court to give the charges in question, that we have not in detail discussed, we think present no reversible error.
Reversed and remanded.