Austin Rapid-Transit Ry. Co. v. Cullen

• Decision Date: 17 April 1895
• Citation: 30 S.W. 578
• Parties: AUSTIN RAPID-TRANSIT RY. CO. v. CULLEN et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 578

30 S.W. 578

AUSTIN RAPID-TRANSIT RY. CO. v. CULLEN et al.¹

Court of Civil Appeals of Texas.

April 17, 1895.

On rehearing. Motion overruled.

For former report, see 29 S. W. 256.

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

COLLARD, J.

In addition to what was said in the original opinion as to the ruling of the court below in overruling general and special exceptions of defendant to the petition, we will add the following upon the question whether the petition is sufficient in alleging the facts constituting the negligence of defendant or its servants causing the death of plaintiff's son. The petition alleges that "defendant was engaged in running and propelling street cars by electricity, for the conveyance of passengers over its railway owned by it and running in the streets of the city of Austin, in the county of Travis, and particularly in and along Cypress or Third street, in said city, and while so engaged, by the unfitness, negligence, and carelessness of its servants and agents, so carelessly and negligently conducted, managed, and propelled one of its said cars in and along said Cypress or Third street, in said city, that by such carelessness and negligence said car ran against, knocked down, and ran over the said Van Buren Cullen, without any fault or neglect on his part, or on the part of plaintiffs, or either of them, wounding and lacerating his head and body, and otherwise injuring him, so that he, the said Van Buren Cullen, then and there, in consequence and by reason of said injuries, immediately died." Then, after alleging facts as to care of plaintiffs to keep the child off the street in danger of the cars, and that he had wandered out on the street without fault on the part of plaintiffs, it was then alleged that the child was "near to and on the railway track of defendant in and along said Cypress or Third street, in the daytime, with no obstructions to prevent him from being seen by the servants and agents of the said defendant in charge of said car; that notwithstanding the said child, Van Buren Cullen, was near to and on said railway track in the daytime, in plain view, so that the said servants and agents of the said defendant in charge of said car, by the use of ordinary care and diligence, could have seen and prevented any injury to said child, yet the said defendant, by the unfitness, negligence, and carelessness of its servants and agents, so carelessly and negligently conducted,...