Southern Kansas Ry. Co. of Texas v. Crutchfield

• Decision Date: 28 March 1914
• Citation: 165 S.W. 551
• Parties: SOUTHERN KANSAS RY. CO. OF TEXAS v. CRUTCHFIELD.
• Court: Texas Court of Appeals

165 S.W. 551

SOUTHERN KANSAS RY. CO. OF TEXAS v. CRUTCHFIELD.

Court of Civil Appeals of Texas. Amarillo.

March 28, 1914.

Appeal from District Court, Carson County; F. P. Greever, Judge.

Action by J. J. Crutchfield against the Southern Kansas Railway Company of Texas. From a judgment of the district court for plaintiff, on appeal from a justice, defendant appeals. Affirmed.

Hoover & Hoover, of Canadian, for appellant. Fayette Ratliff, of Panhandle, for appellee.

HENDRICKS, J.

This suit was instituted by the appellee, Crutchfield, against appellant railway company, in the justice court, precinct No. 1, Carson county, for the sum of $100, for damages for the loss of one milch cow, alleged to have been killed by the negligence of the railway company in the operation of one of its trains. Upon appeal to the district court of that county (the county court of Carson county not having civil jurisdiction), a verdict and judgment were rendered in favor of appellee for the sum of $100, and in the district court plaintiff amended its cause of action by written pleading brought about by a special exception of the appellant railway company, in which amendment it was more specifically alleged which particular train killed the cow of plaintiff and the time of the day the act occurred.

The appellee, plaintiff in the lower court, in the written amendment of his cause of action alleged that the defendant, in operating one of its east-bound freight trains through the town limits of the town of White Deer, about nine o'clock a. m., April 26, 1913, negligently, and without exercising the proper degree of care ran down and ran against plaintiff's cow, and thereby killed her, to the plaintiff's damage, etc. Following this general allegation, "plaintiff alleges that defendant * * * was negligent in this: Defendant was running said train at a high rate of speed through the limits of the town of White Deer, at which place it has no fence inclosing its right of way, and that defendant knew, or could have known, by exercising ordinary care, that stock and cattle are running at large on several sections surrounding said town of White Deer; and would further show that said cow was upon the right of way for a distance of several hundred yards and that said employés operating said train neglected to sound any warning, whistle, or alarm to cause said cow to leave said track, and that said defendant failed to slow down said train, but negligently ran down said cow, all of which [was] the proximate cause of the death and loss of said cow." Upon the pleading of the railway company to the effect that said company was not required to fence its right of way at the place where the accident occurred, the plaintiff, in open court, then admitted that said company was not required to fence its right of way where the cow was killed, which said admission seems to have been regarded by counsel in the trial court as a part of plaintiff's pleadings.

As stated, the railway company demurred that the original petition neither alleged which train killed the cow nor the time of day the same was killed, and we gather from the record that the amendment met this special exception alleging said omissions. Appellant says that this amendment would be equivalent to the bringing of a new action, which could not be done in the district court, for the reason that the pleading amended stated no cause of action, and attempts to apply the case of Lasater v. Fant, 43 S. W. 321, decided by the Supreme Court of this state. The cause decided by the Supreme Court was an action of forcible entry and detainer, the complaint in which was totally defective with reference to several particulars specifically prescribed by statute, and Justice Williams did say in that case: "The complaint is so defective that it states no cause of action whatever, and an amendment of it in the county court would be equivalent to the bringing of a new action, which cannot be done in that court"— and reversing and dismissing the cause on that account. The statement of the original cause of action made by appellee in the justice court, or either in the district court, in the first presentation of same, is not in this record. The citation would not be so regarded strictly as a pleading for the purpose of solving this question, and we are unable...