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: 231
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1884.] TEXAS & P. R'Y Co. v. KIRK. 231
Opinion of the court.
STAYTON, ASSOCIATE JUSTIE.- The petition for the removal of this
cause from the district court of this state to the United States circuit
court is in all material respects the same as was the petition
for removal in the case of Tex. & Pac. R'y Co. v. McAllister,
decided at the last Austin term of this court. 59 Tex., 349.
In that case it was held that the petition for removal stated no
sufficient grounds therefor.
In this case no authority or reason has been brought forward inducing
us to doubt the correctness of the decision made in the case
referred to, and without again giving the reasons set forth that
case, we hold that the petition for removal was insufficient, and
that the court below did not err in retaining and trying the case.
It is not urged that the application was sufficient under any other
of the removal acts than the act of July 27, 1868; hence we deem
it unnecessary to consider it under any other.
The fourth asssignment asserts that the admission of the testimony
of a witness to the effect that another train on the appellant's
railway, on the same day and near the same place as that on which
the husband of the appellee was injured, was thrown from the track,
was error.
The fifth assignment asserts that the court erred in permitting.
two witnesses to state the condition of appellant's track in the vicinity
of the place where the train was thrown from its track, at thetime
appellant's husband was injured, and for some time prior thereto.
The pleadings in this cause in reference to the manner in which
the injury complained of was caused; as to the condition of appellant's
road at the place and in the vicinity of the place where the
injury occurred; as to its negligence in not keeping its road in good
and safe condition; and also as to its knowledge of the dangerous
condition of its track, and its indifference to the safety of passengers,
as well as the relief sought, i. e., damages both actual and
exemplary, are substantially the same as in the case of the same
appellant against De Mlilley decided this day; the injuries which
the appellee in that case and in this complain of, having been inflicted
at the same time and resulting from the same cause.
In the case of The Texas & Pacific Railway Company v. De
Milley, the questions presented by the fourth and fifth assignments
were considered, and it was held that the evidence was admissible
and for the reasons given in that case we so hold in this.n
The second, third and sixth assignments of error are named, and
the seventh is, "The court erred in not giving all the special charges
asked by defendant."
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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/m1/253/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .