Ollis v. Houston, E. & W. T. Ry. Co.

CourtCourt of Appeals of Texas
Writing for the CourtGarrett
Citation73 S.W. 30
Decision Date13 March 1903
PartiesOLLIS v. HOUSTON, E. & W. T. RY. CO.<SMALL><SUP>*</SUP></SMALL>
73 S.W. 30
OLLIS
v.
HOUSTON, E. & W. T. RY. CO.*
Court of Civil Appeals of Texas.
March 13, 1903.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Action by George C. Ollis, a minor, by his next friend, against the Houston, East & West Texas Railway Company. A demurrer to the petition was sustained, and a judgment for defendant was rendered. Plaintiff appeals. Reversed.

Jno. G. Tod and Ewing & Ring, for appellant. Baker, Botts, Baker & Lovett and J. S. McEachin, for appellee.

GARRETT, C. J.


This action was brought in the district court of Harris county for the Eleventh Judicial District, by George C. Ollis, a minor, by his father, Tolmin T. Ollis, as next friend, to recover damages of the

Page 31

Houston, East & West Texas Railway Company for personal injuries. A general demurrer to the petition was sustained by the trial court, and judgment was rendered in favor of the defendant, from which the plaintiff has appealed.

It appeared from the petition that the plaintiff was a minor, six years of age, and that while he was at play with other children upon the cars of the defendant in its switchyard at Houston the defendant caused other cars to be run into the yard and struck a car upon which the plaintiff was playing, and plaintiff was thrown off and received injuries which resulted in the loss of his right arm. It was alleged that at the time of the casualty, and for several months before the happening thereof, the defendant had kept cars, both loaded and empty, on its switch tracks and right of way. The petition also alleged: "That said right of way and premises, at the time of the casualty, and during the period aforesaid, were in a thickly settled and populous neighborhood, practically a part of the city, though out of its limits, and in such neighborhood there were numerous children; and during the period aforesaid the children, generally, of said neighborhood, habitually, constantly, and notoriously made their playground on said right of way and premises, and in, about, and on said cars so left standing thereon as aforesaid, without objection from said defendant or its agents or employés in that behalf, and with its and their knowledge and acquiescence, as also with its and their permission, and under circumstances reasonably justifying and calculated to induce such children in believing, and acting on the belief, that their presence on such premises aforesaid was permitted by defendant, as well as its agents and servants in that behalf." The petition showed by proper allegations that, if the defendant owed the plaintiff the duty of lookout to discover his presence, the cars were run against and struck under such circumstances as to show negligence on the part of the defendant's...

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17 practice notes
  • Campbell v. Laundry, (No. 460.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 9, 1925
    ...78 S. E. 525; Wise & Co. v. Morgan, 101 Tenn. 273, 48 S. W. 971, 44 L. R. A. 548; Ollis v. H., E. & W. T. Ry. Co., 31 Tex. Civ. App. 601, 73 S. W. 30; Smalley v. Railroad, 34 Utah, 423, 98 P. 311; Norfolk & W. R. Co. v. Groseclose's Adm'r, 88 Va. 267, 13 S. E. 454, 29 Am. St. Rep. 718; Amer......
  • Parchman v. Mobile & O. R. R. Co., 25437
    • United States
    • Mississippi Supreme Court
    • May 24, 1926
    ...the presumption was not met. 33 Cyc., Railroads, 773-74; and 769; R. R. L. & P. Co. v. Jones, 45 So. 180; Ollis v. H. E. & W. T. R. R. Co., 73 S.W. 30; Davis v. St. L. & S.W. R. R. Co., 92 S.W. 931; St. L. & S. F. R. R. Co. v. Jones, 16 A. L. R. 1048. Stovall & Stovall and Carl Fox, for app......
  • Christiansen v. Los Angeles & S. L. R. Co., 4855
    • United States
    • Supreme Court of Utah
    • September 23, 1930
    ...is a question of fact, which should be submitted to the jury." Appellant cites Ollis v. Houston, E. W. & T. Ry. Co., 31 Tex. Civ. App. 601, 73 S.W. 30, 31, and quotes therefrom: "The cases make a distinction between mere passive negligence and liability therefor arising out of a condition a......
  • Sorrentino v. McNeill, No. 10649.
    • United States
    • Court of Appeals of Texas
    • November 17, 1938
    ...50 S.W.2d 795; Mexican Central Ry. Co. v. Rodriguez, Tex.Civ.App., 133 S.W. 690; Ollis v. Houston, etc. R. Co., 31 Tex.Civ.App. 601, 73 S.W. 30; St. Louis Southwestern Ry. Co. v. Shiflet, 94 Tex. 131, at 139, 58 S.W. 945; Temple Lumber Co. v. Living, Tex.Civ.App., 289 S.W. 746, 748; Texas &......
  • Request a trial to view additional results
17 cases
  • Campbell v. Laundry, (No. 460.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 9, 1925
    ...78 S. E. 525; Wise & Co. v. Morgan, 101 Tenn. 273, 48 S. W. 971, 44 L. R. A. 548; Ollis v. H., E. & W. T. Ry. Co., 31 Tex. Civ. App. 601, 73 S. W. 30; Smalley v. Railroad, 34 Utah, 423, 98 P. 311; Norfolk & W. R. Co. v. Groseclose's Adm'r, 88 Va. 267, 13 S. E. 454, 29 Am. St. Rep. 718; Amer......
  • Parchman v. Mobile & O. R. R. Co., 25437
    • United States
    • Mississippi Supreme Court
    • May 24, 1926
    ...the presumption was not met. 33 Cyc., Railroads, 773-74; and 769; R. R. L. & P. Co. v. Jones, 45 So. 180; Ollis v. H. E. & W. T. R. R. Co., 73 S.W. 30; Davis v. St. L. & S.W. R. R. Co., 92 S.W. 931; St. L. & S. F. R. R. Co. v. Jones, 16 A. L. R. 1048. Stovall & Stovall and Carl Fox, for app......
  • Christiansen v. Los Angeles & S. L. R. Co., 4855
    • United States
    • Supreme Court of Utah
    • September 23, 1930
    ...is a question of fact, which should be submitted to the jury." Appellant cites Ollis v. Houston, E. W. & T. Ry. Co., 31 Tex. Civ. App. 601, 73 S.W. 30, 31, and quotes therefrom: "The cases make a distinction between mere passive negligence and liability therefor arising out of a condition a......
  • Sorrentino v. McNeill, No. 10649.
    • United States
    • Court of Appeals of Texas
    • November 17, 1938
    ...50 S.W.2d 795; Mexican Central Ry. Co. v. Rodriguez, Tex.Civ.App., 133 S.W. 690; Ollis v. Houston, etc. R. Co., 31 Tex.Civ.App. 601, 73 S.W. 30; St. Louis Southwestern Ry. Co. v. Shiflet, 94 Tex. 131, at 139, 58 S.W. 945; Temple Lumber Co. v. Living, Tex.Civ.App., 289 S.W. 746, 748; Texas &......
  • Request a trial to view additional results

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