Missouri Pac. Ry. Co. v. Hennessey

• Decision Date: 19 November 1889
• Citation: 12 S.W. 608
• Parties: MISSOURI PAC. RY. CO. <I>v.</I> HENNESSEY.
• Court: Texas Supreme Court

12 S.W. 608

MISSOURI PAC. RY. CO.

v. HENNESSEY.

Supreme Court of Texas.

November 19, 1889.

Commissioners' decision. Appeal from district court, Tarrant county; R. E. BECKHAM, Judge.

Action by Patrick Hennessey against the Missouri Pacific Railway Company for personal injuries. Judgment for plaintiff, and defendant appeals.

Finch & Thompson, for appellant. W. R. Laury and Ball & McCart, for appellee.

COLLARD, J.

On the 10th of March, 1885, Patrick Hennessey filed this suit against the Missouri Pacific Railway Company, claiming damages in the sum of $15,000 for personal injuries received on the 10th day of August, 1884. On the 27th day of September, 1887, Hennessey, by his next friend, filed his amended petition, in which it is alleged that he was walking upon a certain street, (Front street,) in the city of Fort Worth, on the 10th day of August, 1884, which street was intersected by the defendant's railroad track, the Y's and switches thereof, the same being a public crossing; that while so walking, by the gross negligence of defendant and its servants in running said train at a great rate of speed, and without giving the proper and necessary warning and signals, as was then required by the statutes of the state and the ordinances of the city, he (said Hennessey) was run over by defendant's train of passenger-cars so that thereby he was taken unawares, knocked down, his skull and divers members fractured, etc., for which the damages are laid at $20,000. The second count in the petition avers that he was run upon by said cars while he was on the track, and injured as aforesaid; that the "injuries were caused by the willful negligence of defendant's agents in failing to ring the bell and blow the whistle," and because of the great speed of the train, in violation of the statutes of the state and the ordinances of the city, and by the willful acts of defendant's agents "in failing to warn plaintiff of his danger, and in failing to stop the train before it reached plaintiff, when they saw he was about to be taken unawares, and injured." Defendant answered by general demurrer, general denial, and by plea of contributory negligence on the part of Hennessey in walking and sitting down on the track before a moving train of cars. Verdict and judgment for plaintiff for $12,500. After this, pending defendant's motion for a new trial, Hennessey died, whereupon the administrator of the estate appeared to prosecute the case. After this the motion for new trial was overruled, and the defendant appealed, and assigned various errors.

Over the objection of defendant, witness for plaintiff, George A. Barnes, was allowed to testify that there was no target light at the place where the accident occurred, on the night of the occurrence, but that there was a post and light put just west of where the Y track crossed the street a few days afterwards. The admission of this testimony was objected to, and is assigned as error because not responsive to the pleadings. It is elementary and statutory in this state that the petition shall set forth "a full and clear statement of the cause of action;" that is, the facts which constitute the cause of action. Rev. St. art. 1195; Ramsay v. McCauley, 2 Tex. 189; Milburn v. Walker, 11 Tex. 329; Moody v. Benge, 28 Tex. 545; Malone v. Craig, 22 Tex. 609; Gray v. Osborne, 24 Tex. 157. This is necessary, in order to apprise the opposite party of the facts that are expected to be proved. A mere abstract proposition that defendant was guilty of negligence which resulted in injury to plaintiff would not be sufficient. The act done or omitted constituting negligence must be averred and proved. Hence it follows that an act done or omitted which is relied on to establish negligence must be...