Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 230
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230 TEXAS & P. R'Y Co. v. KIRK. [Tyler Term,
Argument for the appellee.
entitled "An act to encourage the speedy construction of a railway
through the state of Texas to the Pacific ocean," passed May 24,
1871; second, an act entitled "An act amendatory of and supplementary
to an act entitled ' An act to encourage the speedy construction
of a railway through the state of Texas to the Pacific ocean,'
passed May 24, 1871," passed November 21, 1871; third, an act
entitled "An act to define the rights of the Texas & Pacific Railway
Company within the state of Texas, in order to encourage the
speedy construction of a railway through the state of Texas to the
Pacific ocean," passed May 2, 1873; that the defendant had not in
fact any defense arising under the constitution and laws of the
United States as shown by the record; and that the effort to remove
was an attempt to perpetrate a fraud on the jurisdiction of
the court.
The facts in this case are not presented as required by the rules;
the questions to and answers by witnesses are given in full. They
seem to establish clearly the charge of gross negligence.
Verdict and judgment for appellee for $12,500 actual damages.
Turner & Stewart, for appellant, on their proposition that thb
court erred in not removing the cause to the United States circuit
court, cited: Union Pacific R'v Co. v. Fisk, 8 Blatch., 362; Hatch v.
Chicago, R. I. & Pacific R. R. Co., 6 Blatch., 105; Fisk v. U. P. R.
R. Co., 8 Blatch., 243; Dennistown v. Draper, 5 Blatch., 336; Shaft
v. Phoenix Ins. Co., 67 N. Y., 544; Bell v. Dix, 49 N. Y., 232;
Berry v. R. R. Co., 64 Mo., 533;- Hereford v. zEtna Insurance Co.,
42 Mo., 148; Osgood v. R. R. Co., 7 C. L. N., 241; Kern v. Huidekoper,
13 Otto, 485.
That the deceased was a fellow-servant and the company not
responsible, they cited: Laning v. N. Y. C. R. R. Co., 10 Am. Rep.,
417; Farwell v. B. & W. R. R. Co., 4 Met., 49.
F . . Sexton and TF. c& N. A. Steadman, for appellee, cited on
jurisdiction: Whitton v. R. R. Co., 13 Wall., 270; Muller v. Dows,
4 Otto, 444; Cissell v. McDonald, Reporter, vol. 7, 553; SlaughterHouse
Cases, 16 Wall., 36; Stephenson v. Tex. & Pac. R'y Co., 42
Tex., 162; "An act to extend the time for the construction of
works of internal improvement," passed March 15, 1875-a general
law; also Wright v. Hawkins, 28 Tex., 452; Keyes v. Gold Washing
& Water Co., 6 Otto, 199; Const. United States, art. 1, sec. 8,
art. 3, sec. 2; Cooley's Const. Lim., pp. 173, 391; United States v.
Reese et al., 2 Otto, 215; United States v. Cruikshank, 2 Otto, 542.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/252/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .