Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 172
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172 CITY OF GALVESTON V. BARBOUR. [Austin Term,
Syllabus.
as it were from the grave, the court said the living defendant should
also be allowed to testify. This was an interpretation of the statute
according to its spirit and intention, and not according to its letter,
and giving such a construction in the present instance, we think the
court erred in not excluding the testimony of the wife.
The objection to the competency of the witness Galbreth's testimony
was not well taken. The fact that he could not speak with
certainty as to what Brotherton had said did not prevent him from
giving his best recollection. If he had doubts about the correctness
of his memory, or could detail only portions of the conversation, this
would not exclude what he could undertake to state although it was
his mere impressions of what had been said. But the jury might
have taken those facts into consideration in passing upon the credibility
of his evidence. 1 Greenl. on Ev., sec. 440; Swinney v. Booth,
28 Tex., 113.
There is nothing in any of the other objections taken to the
judgment; but, for the error stated, it must be reversed and the
cause remanded.
REVERSED AND REMANDED.
[Opinion delivered June 28, 1884.]
THE CITY OF GALVESTON V. J. if. BARBOUR ET AL.
(Case No. 5046.)
1. LIABILITY OF MUNICIPAL CORPORATION FOR INJURIES CAUSED BY DEFECTIVE
SIDEWALKS.- In the absence of a statute declaring the liability of a municipal
corporation for injuries caused by defective sidewalks, such liability
exists.
2. MEASURE OF DAMAGES.- In a suit brought by parents against a municipal
corporation for damages caused by defective sidewalks in the city, whereby
the son of plaintiffs sustained injuries from which he died, the mental suffering
of the parents does not form an element in estimating damages.
3. SAME.--In such a case the true measure of damages would be a sum equal to
the pecuniary benefit which might reasonably have been expected to result
to the parents from the services of the child, had he not been injured, taking
into consideration the fact that he was a minor, if there was no basis
for exemplary damages. In addition thereto the parents may recover the
costs of medical and other like expenses necessarily incurred.
4. EVIDENCE - RES GESTE.- The day after an injury was sustained by a minor
in his foot, from which he died, the father (who sued a municipal corporation
for damages) examined a projecting bolt in the curbing of a sidewalk,
in consequence of what his son told him as to the cause of his injury, and
found drops of blood on it; the father stated this in evidence, and also that
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/194/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .