*1 211 lake on that side. To the west and of north the MISSOURI, east, lake were farms. On the et MARUSKA al. v. K. & T. across the R. (No. 7267.) railroad, highway. OF CO. TEXAS. was a question, appellants’ On the occasion in Appeals Court of Civil of Texas. Austin. son, companion approximately and his of the 10, Oct. 1928. age, same yard, crossed the cotton climbed Rehearing 81, Oct. Denied 1928. through fence, lake, Parmele’s and went to the to play, catch crawfish. In each the threw other’s hat in the lake. Deceased’s hat blew across to the north side. He went down to. right way, through railroad the of climbed fence, or over its the followed track to the lake, through north the of side the climbed back right way of into fence Parmele’s inclo- sure, water, waded out into the recovered his hat, spite warnings, and in of from his com- panion present, a and Mexican who was not so, lake, to do waded farther out into was drowned. and the ’ Appellants urge negligence actionable against company respects: the railroad in two (a) constructing very keeping large, In a and extraordinary, adjoining immediately and unusual lake Granger, the town within of a few thickly populated portion feet of hundred a town, adjoining play- of said and the common ground (b) children; failing for numerous in build, provide, keep proper repair to and in safeguard, fence, a would or other obstruction which prevent vicinity, in children the who by going lake, it. were attracted the from into Taulbee, Georgetown, J. F. of and Win- Diability predicated up in this case is Pearce, Temple, appellants. of for bourn commonly in is on the rules laid down what Graves, Georgetown, ap- Wilcox & of for eases,” is, known as the “turntable doctrine of “attractive nuisances.” that the pellee. Appel only Ry. Morgan, three v. lants cite 92 cases. Co. BAUGH, damages a J. This was suit for 98, Barnes, 28; Mill 46 S. W. Oil Tex. v. by drowning appellant’s for of the death 409, 375, (N. S.) R. 103Tex. 128 S. W. 31 A. D. year appellee’s old son seven in artificial 1913A, McCoy 1218, 111, Cas. and v. T. Granger, Tex., by Ann. ap- lake near pellee ers, constructed (Tex. App.) P. S. W. 1108. provide engines, & D. Co. Com. 239 its to water for boil- Expressions which, if in these cases At the of the occur etc. close evidence the might ignored, a to trial court instructed verdict for rail- their sustain be construed the facts be appeal. company, appellants’ But a road hence this it is contention. question by in was The lake formed dump' the of construction that decisions cardinal rule light construction of the railroad across a are to of be construed in the the facts augmented springs they on ravine. by It was filled from which are based. Each of these dangers, water. surface There was evidence in- cases involved hidden in the instru dicating inflicting injury, apparent a maximum width lake near ment of the the not to length injured. the a road with its fences across the waters of the of and a from 500 feet of those who railroad were three-quarters prevails half of to a The rail- A different mile. rule as to natural objects only way forces, company right lakes, rivers, trees, owned its as of and such 'extending dangers on etc. the line thereof Their characteristics and are knowledge lake, all, the and leased common of obvious even owner, though Parmele, to dren, from the covered tended J. J. water. Parmele’s fence ex- land And the other children. attractive to chil by years, the of even tender the owner thereof lake, generally required is around the was set from not back even to fence such edge joined premises distance, prevent injury the water’s a short in order and to to tres way right passers'. ease, though the pany city of fence of railroad the com- In the -instant it was frequently on side each of the lake. the shown that children and Between contin ually Granger limits of and was said lake a came to this lake to catch crawfish privately owned, yard, play, cotton feet and to Mr. 600 wide. Parmele testified that it was game preserve, kept the a ing signs This was south side of On fish on the lake. and warn that he yard lake, kept the south street on which were numerous This street was the nearest of cotton side this was a around the and that he repair the in residences. fences such in state of as to highway sheep, cattle, horses, to said his close etc. *2 212 recovery lake, opinion, practically is not In all The of in our cases where size the lake, dangers permitted, of small has been of conditions material. The a one two enough child, present deep existed, the to drown are neither of was the where a Which in large case; is, one, and same some of a instant hidden that there was either same as those the present danger in, upon, the is in one as in or over the lake other lure the child to body itself; Indeed, most disclose.that than the of or was
other. of the cases water same adjacent immediately in from deaths to or under have arisen maintained such suits place Apparently highway, public 'passageway, pools lakes. the added some or or small warning people right to an rule is added both where had travel. size of a lake children and a to The dangers respect tersely parents. in by to hidden stated' is Troglia Appeals general as one v. such cases the of in The rule in the Circuit Court 85, p. Superior Mining Co., 75, 20 C. L. fol- § is announced in R. Butte 270 as before us 97, F. lows: as follows: lakes, streams, “Ponds, pools, degree required wa- other and who “The of one of care embody perils pool to obvi- are deemed be a that land an artificial for ters maintains on his useful years; greater required as purpose and the to of tenderest than that ous a children is not liability general proposition the through to attaches no natural whose land flows a of one resulting by proprietor from to to special stream, there- reason death or of to no care and he is bound upon protection land precaution the children who have come who for of children tbe * * * Although, play. a bathe, swimming same, un- skate or in of in the are the habit may property pool peculiar danger, chil- of habit of owner know the less there is in the some upon premises, peril trap is as his he to visit waters the dren a in the nature a hidden or for of obligation ought unwary, barriers or to rule under no erect or of he to have which has prevent being (cid:127) knowledge.” them in- take other measures to jured thereby.” case, undisputed of facts this Under the Co., M., & T. R. 91 Tex. In Dobbins v. K. of law as announced well-settled rules and the R, 573, 60, Rep. 62, A. St. 38 66 Am. S. W. L. 41 cases, we think trial the in the above-cited court damages dpath 856, for for the a suit jury properly find to instructed the pool drowning in on the a of a from child judgment there- the defendant. The is for fore affirmed. Supreme railway company’s right way, of the say: Court Affirmed. law-making power police the “As measure a should, unduly.in- may terfering without and doubtless Rehearing. ownership Appellants’ burdening private for Motion On with or etc., compel pools, land, sit- the inelosure of of uated on imity ally appellants rehearing for In motion their property prox- private in such close request paragraph as the court places in thereof thickly 6 as to unusu- settled be to impose dangerous, and crim- and liability, follows: attractive both, for failure to civil or inal and appellants request court and the “The move requirements comply of such law. with the paragraph in. statement the to make additional may imposed duty is a the courts When such urged setting negligence opinion the the forth of damages properly it allow for its enforce or showing company, that, against connection with the paragraph, in railroad the breach, but not before.” negligence this set forth in allegation that the de- there was an 464; See, also, Cyc. Ry. Ed 29 Co. v. property malting such use its was not fendant of wards, 825; 65, 430, 36 W. A. 90 Tex. 32 L. R. S. ordinarily do and that the others as defendant Co., Car 134 Moran Pullman Palace v. property maiding its as own- such use was not of 641, 659, 755, Am. ordinary Mo. 36 S. L. R. A. W. 33 56 property in their businesses use ers of way prudence Thompson Rep. 543; Ry. Co., the in which men are ac- Miss. in St. v. 105 of specified them the reasons customed to use 1101; (N. 636, S.) 185, for 47 D. R. A. 63 So. petition," in such Pipe Co., 208 v. American Eades Cast-Iron 556, very list 94 593. A extended Ala. of So. substantially pleadings the contain Their notations, of this with a full discussion allegation requested, so and we as above seq., question, in is found A. D. R. 224 36 et find, respect appellants’ motion in and this perhaps discussion that the most exhaustive respects granted. it is over- is In all other See, also, v. Kansas have found. Davoren we ruled. 401, City, 513, R. 40 Mo. W. A. L. 308 273 S. part part in overruled. in Granted and 488.