Cook v. Houston Direct Nav. Co.

CourtSupreme Court of Texas
Writing for the CourtGaines
Citation13 S.W. 475
PartiesCOOK <I>et ux.</I> <I>v.</I> HOUSTON DIRECT NAV. CO.
Decision Date28 February 1890
13 S.W. 475
COOK et ux.
v.
HOUSTON DIRECT NAV. CO.
Supreme Court of Texas.
February 28, 1890.

Appeal from district court, Harris county; JAMES MASTERSON, Judge.

Action by William Cook and Josephine, his wife, against the Houston Direct Navigation Company. Judgment was rendered for defendant, and plaintiffs appealed.

B. O'Malley, Gustave Cook, and A. C. Allen, for appellants. W. U. Shaw, for appellee.

GAINES, J.


This action was brought by appellants to recover of appellee, a corporation, damages for the death of their daughter, Rosa Cook, which was alleged to have been caused by the negligence of the defendant company. The plaintiffs resided in the city of Houston, near a wharf at which a tug-boat belonging to the defendant company was accustomed to lie. Rosa, who at the time of her death, was 13 years and 9 months old, had been in the habit of carrying milk from her parents' residence to the boat, for the use of the captain. On the day of her death, she went about noon to the boat upon the same errand, and the employes of the boat, being at dinner, invited her on board to dine. Her little brother, who happened to be passing near the boat at the time, was also asked to come on board to take dinner. While they were dining the boat was cut loose from the wharf, and moved down the stream, and while it was in motion Rosa was called by one of the crew to take coffee. In passing along the side of the boat she came close to a pile of wood, and placing her hand upon it, one or more billets fell and struck her upon the knee, and precipitated her into the river, where she was drowned.

It was first alleged in the petition that the defendant company was a common carrier of freight and passengers; that plaintiff's daughter, Rosa, was taken on board the tug-boat as a passenger, and that her life was lost while that relation existed between her and the defendant; but it was also alleged that she was received upon the boat against the will of the plaintiffs, as known to the defendant company, and that, under such circumstances, it was an act of negligence. The defendant filed an answer in which, among other things, it was alleged that the boat upon which the accident occurred was not a passenger boat, but merely a steam-tug, engaged in the towing of barges and lighters owned by the company, and that the employes of the company were forbidden to carry any one as a passenger upon the boat without a special pass from the general superintendent of the company; and that, if plaintiff's daughter was taken as a passenger upon said boat, which was not admitted, but denied, she was so received contrary to the rules and regulations of the company. So much of the answer as alleged these facts was excepted to, and the exceptions were overruled.

Appellants' first four assignments of error complain of the ruling of the court in not sustaining the exceptions. We are of the opinion that the allegations excepted to were a sufficient answer to so much of the petition

Page 476

as alleged that, at the time of the accident, the relation of passenger and common carrier existed between the daughter and the defendant. The petition having based the cause of action upon two grounds, an answer to either was an answer to so much of the petition, and was properly permitted to stand. Upon the trial the defendant offered testimony to prove that the steam-tug was not a passenger boat; that it was against the rules of the company for the employes to carry passengers upon...

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57 practice notes
  • Henry v. Mississippi Power & Light Co., 30455
    • United States
    • Mississippi Supreme Court
    • March 27, 1933
    ...Gas & Elec. Co. (La.), 136 So. 169; Davis v. Ohio Valley Banking & Trust Co., 106 S.W. 843; Cook v. Houston Direct Nav. Co., 76 Texas 353, 13 S.W. 475; Lake Shore R. R. Co. v. Brown, 123 Ill. 162; McGee v. Missouri Pac. R. R. Co., 1 A. S. R. 706; International Railroad Co. v. Cook, 2 A. S. ......
  • Bicandi v. Boise Payette Lumber Co., 6037
    • United States
    • United States State Supreme Court of Idaho
    • May 3, 1935
    ...to enter the premises was an act of negligence for which the defendant was responsible. (Cook v. Houston Direct Nav. Co., 76 Tex. 353, 13 S.W. 475, 18 Am. St. 52; 39 C. J., Master and Servant, p. 1285, sec. 1477.) MORGAN, J. Givens, C. J., and Sutton, D. J., concur, HOLDEN, J., Concurring S......
  • Indianapolis Traction And Terminal Company v. Croly, 7,363
    • United States
    • Indiana Court of Appeals of Indiana
    • December 22, 1911
    ...574, 580; Atchison, etc., R. Co. v. Hardy (1899), 94 F. 294, 37 C. C. A. 359; Cook v. Houston, etc., Nav. Co. (1890), 76 Tex. 353, 358, 13 S.W. 475, 18 Am. St. 52; Howland v. Union St. R. Co. (1889), 150 Mass. 86, 22 N.E. 434, 150 Mass. 86; Wynn v. City, etc., R. Co. (1893), 91 Ga. 344, 359......
  • Nashville Lumber Co. v. Busbee
    • United States
    • Supreme Court of Arkansas
    • June 5, 1911
    ...conceded. The ruling of the court in excluding the above testimony was not prejudicial. See Cook v. Houston Direct Nav. Co., 76 Tex. 353, 13 S.W. 475; Barrett v. S. P. R. R. Co., 91 Cal. 296, 27 P. 666; Price v. Atchison Water Co., 58 Kan. 551, 50 P. 450. Fourth: The appellant offered to pr......
  • Request a trial to view additional results
57 cases
  • Henry v. Mississippi Power & Light Co., 30455
    • United States
    • Mississippi Supreme Court
    • March 27, 1933
    ...Gas & Elec. Co. (La.), 136 So. 169; Davis v. Ohio Valley Banking & Trust Co., 106 S.W. 843; Cook v. Houston Direct Nav. Co., 76 Texas 353, 13 S.W. 475; Lake Shore R. R. Co. v. Brown, 123 Ill. 162; McGee v. Missouri Pac. R. R. Co., 1 A. S. R. 706; International Railroad Co. v. Cook, 2 A. S. ......
  • Bicandi v. Boise Payette Lumber Co., 6037
    • United States
    • United States State Supreme Court of Idaho
    • May 3, 1935
    ...to enter the premises was an act of negligence for which the defendant was responsible. (Cook v. Houston Direct Nav. Co., 76 Tex. 353, 13 S.W. 475, 18 Am. St. 52; 39 C. J., Master and Servant, p. 1285, sec. 1477.) MORGAN, J. Givens, C. J., and Sutton, D. J., concur, HOLDEN, J., Concurring S......
  • Indianapolis Traction And Terminal Company v. Croly, 7,363
    • United States
    • Indiana Court of Appeals of Indiana
    • December 22, 1911
    ...574, 580; Atchison, etc., R. Co. v. Hardy (1899), 94 F. 294, 37 C. C. A. 359; Cook v. Houston, etc., Nav. Co. (1890), 76 Tex. 353, 358, 13 S.W. 475, 18 Am. St. 52; Howland v. Union St. R. Co. (1889), 150 Mass. 86, 22 N.E. 434, 150 Mass. 86; Wynn v. City, etc., R. Co. (1893), 91 Ga. 344, 359......
  • Nashville Lumber Co. v. Busbee
    • United States
    • Supreme Court of Arkansas
    • June 5, 1911
    ...conceded. The ruling of the court in excluding the above testimony was not prejudicial. See Cook v. Houston Direct Nav. Co., 76 Tex. 353, 13 S.W. 475; Barrett v. S. P. R. R. Co., 91 Cal. 296, 27 P. 666; Price v. Atchison Water Co., 58 Kan. 551, 50 P. 450. Fourth: The appellant offered to pr......
  • Request a trial to view additional results

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