Austin Rapid Transit Ry. Co. v. Cullen

• Decision Date: 30 January 1895
• Citation: 29 S.W. 256
• Parties: AUSTIN RAPID TRANSIT RY. CO. v. CULLEN et ux.
• Court: Texas Court of Appeals

29 S.W. 256

AUSTIN RAPID TRANSIT RY. CO. v. CULLEN et ux.

Court of Civil Appeals of Texas.

January 30, 1895.

Appeal from district court, Travis county; James H. Robertson, Judge.

Action by Theodore Cullen and wife against the Austin Rapid Transit Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

This is a suit brought by Theodore Cullen and wife, Edna Cullen, against appellant, for damages for negligently running a car over and killing their infant son, Van Buren Cullen, then, on the 3d day of May, 1892, aged 25 months. Verdict and judgment were for plaintiffs for $6,000, from which defendant has appealed. Giving proper effect to the verdict of the jury upon conflicting testimony and disputed facts, we find the facts as follows: The plaintiffs were living on the corner of Third and Red River streets, on the south side of Third street. A Mr. Reissig's home was opposite plaintiffs', on the north side of Third street, and he kept a store there. Immediately west of plaintiffs', across Red River street, on the corner, was Mrs. Hooten's store, and north of her house, across Third street, was a warehouse controlled by Mr. Gerhard. Defendant's electric street-car line ran on Third street, in front of plaintiffs' house, in the center of the street. Plaintiffs were careful with their child to prevent his going on the street near the street cars; kept the yard gate wired at the top. On the day the child was killed, there were visitors at plaintiffs' house, — an uncle of Mr. Cullen, and his little boy. The uncle and his little boy went out to their wagon to get something they had there; and before the uncle came back to the side of the dining room, where Mrs. Cullen was, she noticed that the wire was off the gate, and called to her uncle that her little boy would get out. He replied: "He is already out. He is there on the sidewalk." She looked out on the sidewalk on the west of the house where the wagon was, and, not seeing the child, started to the front door, and, looking through a window, saw the child lying on defendant's track. He had already been run over and killed by a passing car. This was about 2:35 p. m. Mr. Cullen had been home to dinner, but had returned to his business in the city. Without stating the evidence, it will be sufficient to say that the defendant's servants in charge of the car negligently ran the car over the child. If defendant's servants had exercised proper care, they could have seen the child, and he would not have been injured.

Fisher & Townes, for appellant. E. T. Moore and D. W. Doom, for appellees.

COLLARD, J. (after stating the facts).

Appellant assigns as error the overruling by the court of its general and special exceptions to the petition. The special exceptions are that the petition does not allege the facts constituting the negligence of defendant's servants, and that it fails to furnish data by which the damages can be legally estimated. We think the petition sets up the negligence relied on for a recovery. The gist of the case is that the child, not being of years of discretion, was near or on the track, in plain view of the persons in charge of the car, so that they, by the use of ordinary care, would not have run over it; but that they failed to exercise such care, and, by their unfitness, negligence, and carelessness, so carelessly and negligently managed and propelled the car that it ran over the child and killed it. These are the facts constituting the cause of action as shown by the proof, and they are alleged in the petition. It was not necessary to set out the evidence supporting the alleged facts. As to the amount and items of damages, we think the petition was sufficient. The averments were as full as the nature of the case required. The condition of the parents was stated; the age of the child; that for his age "he was a child of much strength, mental and physical vigor, and prospects of longevity and great usefulness to plaintiffs"; that plaintiffs, as his parents, were entitled to his services until he should be 21 years old; and that thereafter he would have provided for them, and given them pecuniary support and assistance. The petition estimated the value of the services and the expected pecuniary support and assistance at $20,000. This question will be further discussed...