86 S.W. 65 | Tex. App. | 1905
This is a suit for damages brought by Mrs. M. S. Burns, for herself and as next friend for her minor son, Jarrell Burns, against the appellant. Upon trial verdict and judgment were rendered for Mrs. Burns, from which this appeal is prosecuted.
On September 24, 1903, appellant was moving two or more rigs of machinery, consisting of traction engines, thresher, etc., along the public street in Dallas, from its down-town warehouse to the fair grounds, in the eastern part of the city. The machinery was attractive to children. Jarrell Burns, seven years of age, and other children of various ages, followed the machinery, as it moved through the streets, and, when *414 nearing the fair grounds, Jarrell Burns, while attempting to pass between parts of the machinery, was run over and injured. Jarrell Burns, as well as all the boys, had been driven away from the machinery, and repeatedly warned to stay away therefrom, etc.
The court was requested to instruct the jury as follows, which instruction was refused, and this is assigned as error, viz.: "The uncontradicted evidence in this case shows that the defendant, through its agents and employes in charge of its machinery while same was being moved through the streets of the City of Dallas, at the time of the happening of the accident complained of by plaintiff, not only did not invite the plaintiff, Jarrell Burns, to go upon or about said machinery, but said evidence shows that defendant, through its said agents and employes, commanded and directed the plaintiff, Jarrell Burns, not to go or be about said machinery. Therefore, unless some one of the defendant's agents or employes in charge of moving said machinery knew, before the accident complained of, that Jarrell Burns had placed himself in a position of peril or danger, and had such knowledge a sufficient length of time before the accident to have prevented the accident and injuries to Jarrell Burns by the use of such a degree of care as they might reasonably have used under the circumstances, then you will return your verdict for the defendant."
This charge, or one of similar import, should have been given.
The appellant had the right to move the machinery along the streets of Dallas, and it seems, from the evidence, that the employes of appellant gave the boys warning, and ran them away from the machine repeatedly. If their testimony is to be believed, and it does not seem to be contradicted, they were, when not paying attention to operating the machinery in its transportation, continually driving the boys away, and warning them to desist from hanging on the machinery or being in close proximity thereto. Jarrell Burns' running in between the machinery seems to have been sudden, and he was not seen by any of the employes of appellant.
The principles governing this case are the same as announced by our Supreme Court in Construction Company v. Bostick (
The judgment will be reversed and cause remanded. *415
As we are rendering, instead of remanding the cause, we deem it proper to state our conclusions of the evidence. The machinery being moved was attractive to children, which was known to appellant, and an extra force had been put on in order to keep children from being hurt. It took several hours for the machinery to traverse the distance from the warehouse to the fair grounds. As it moved along the streets boys of various ages would approach it and swing onto it until driven away by appellant's servants. They would come and go, and others drop into their places. While in motion some of them would run in between the machinery and play "horsey" over and upon the tongue. When Jarrell Burns reached the machinery it was within one-half mile of where he was hurt. The employes repeatedly drove them away from the machine, and warned them to stay away or they would get hurt, but when the employe would turn his back the boys would return to the machine and hang onto it as before.
Jarrell Burns testified that he was made to get away once, and heard the men tell the boys to get away two or three times. The proof is uncontradicted that the employes time and time again told the boys to get away, and used a stick in hitting at the boys' hands as they clung to the machine to make them stay away from the machine. While the machine was moving Jarrell Burns, without being seen by the employes, ran between the separator and tank to cross over, when he stumbled over the tongue of the separator and was hurt. The appellant was not guilty of negligence in failing to use proper care to prevent the injury.
In support of appellee's contention that appellant was guilty of negligence, and should be held liable, among others, the cases of Railway v. Cunningham (30 S.W. Rep., 367) and Railway v. Abernathy (28 Texas Civ. App. 613[
In this case the machinery was moving at a slow pace when Jarrell Burns was hurt. He had been warned that it was dangerous. He had been in the rear of the machine, and had hung on the back part, where there was little chance to be run over had he fallen. His running in between the separator and tank was sudden, and such an act as, under the circumstances, appellant was not required to anticipate.
Appellant had the right to move its machinery along the streets, and was required to use ordinary care to prevent injuring anyone, and this we think appellant's employes exercised on this occasion. The principle announced in the Bostick case, cited in our original opinion, is, we think, applicable here. It is insisted that the facts in that case show the gin was private property and the boy a trespasser. While it may have been private property, it was being operated by a company in ginning for the public.
It might be asked, What was appellant to do under the circumstances? Appellant should not be required to anticipate that the boys would be so heedless as not to heed the warning of danger, and to have a sufficient force to attend to the machinery and to keep the boys away under the circumstances. Appellant had no control over the streets. It had no control over the boys. The boys had a right to be in the streets, and when the boys were around the machinery, what could appellant do but drive them away the best it could, and continue the journey? We do not believe the law required it to stop and hunt up police sufficient to keep the boys away in anticipation that some boy would run in between the separator and tank, if the journey was continued.
The motion for rehearing, to the extent that the cause will be rendered in favor of appellant, instead of remanded, is granted.
Writ of error refused.