This is an action by the appel-lees agаinst the appellants to recover dаmages for the death of their child, seven years of age, who was run over and killed by an automobile. The sole question on apрeal is whether the suit should have been brought in thе county where the defendants have their domicile, or may be brought in the county where the child was killed. The petition alleged that—
(1) “The plaintiff resides in Franklin county, Tex., and the defеndants reside in Wood county, Tex.;” (2) “plaintiff would show to the court that at the time the plaintiff’s said child was run over and killed the said automobilе was being operated by the servant and еmployé of the defendants in' Franklin county, Tex., and said child was killed in said Franklin county, Tex.;” and (3) “the child was standing by the side of the road in full view of the driver of the car at the time he was killed, was on a straight road for over a hundred yards, and thе said driver could, by the use of ordinary care, have prevented the killing, but he negligently ran the car at an unusual high rate of speed and in a careless and negligent manner, and failed to keep a proper lookout for persons along the road, and failed to stop the car to avoid striking the сhild.”
The venue statute (Rev. St. 1911, art. 1830, subd. 9) provides:
“Wherе the foundation of the suit is some crime, or offense, or trespass, for which a civil action in damages may lie, the suit may be brought in. the сounty where such crime, or offense, or trespass was committed, or in the county where the defendant has his domicile.”
“Trespass,” as used in the provision quoted, has been construed as meaning to' embrace “some wrоngful act committed, and not merely a tort resulting from the negligent omission to perform a duty.” Wеttermark v. Campbell,
The ruling of the trial court, it is concluded, should be affirmed.
<©s»For other cases see samе topic and KEY-NUMBER in all Key-Numbered Digests and Indexes