*1 1034 authorities “Practically modern all Hancock, su Strong support this view. 60]; 530, P. Sanders pra 258 Cal. [201 592, N.W. Campbell, 204 231 Mich. 587, 513, N.E. Foss, 80 Mass. Evans v. 194 1039, Cu 11 L.R.A.,N.S., Ann.Cas. Ill. & Trust Chicago Title neo v. Brown, 338 760; Dolan v. 589, 169 N.E. Ave North 412, 425; Todd v. 170 N.E. Ill. Corporation, 121 Misc. Holding nue App.Div. affirmed
201 N.Y.S. N.J.Eq. Foley, 102 953; Frick v. 204 N.Y.S. Trust Northern Frick v. 141 A. App.) 146 A. (N.J.Err. & et al. 150, 120 A. Wood, Pa. Hunter v. 183, 88 N.E. Huber, St. 80 Ohio Brown v. Cape, 705; Spahr v. L.R.A.,N.S., 322, 28 Pierce Mo.App. 262, 278 Co., Mo. Trust Louis Union St. Somerville, 121 Or. 398; Ludgate v. 837;” 1043, 54 A.L.R. P. requires that said above over- appellants be propositions other injunction granting the and the order ruled
affirmed. Affirmed. Beeville, ap- Beasley Beasley, for & pellant. Beeville, Wade, appellee.
Wade & MURRAY, Justice. This is an attractive case. The undisputed. Montgomery salient are Inc., defendant below Ward & Inc., CO., WARD
MONTGOMERY conducting a re- RAMIREZ. Beeville, County, store in Bee Texas. tail 10516. No. selling Among things it was motor washing machines. On November driven Appeals of Texas. Civil Court appellant, acting through its em- Antonio. San placed ployees, gasoline April 12, 1939. belong- store but on a lot in the rear of its ing to the order test May Rehearing 1939. Denied operation. it in The ma- machine set five four and one-half or chine was about height, about two feet width. feet engine portion of placed beneath the tub machinery part of the left chine. which formed the exposed was two rollers wringer top was on portion. The was left unat- tub employee except one was instruct- tended occasionally to see that notice ed to placed stopped. machine was had not of the store because the fumes in the rear engine were not desired building. store thus operating, the machine was While years eleven age, *2 plaintiff many appellant’s who appellee boys small were known below and employees father and Also by through passageway. sues his herein to use this passing friend, employees these was knew that Jose store. in along public alley boys upon lot to the rear small Mexican came the by through two accompanied He at the time was the rear of the store searched age. boys They same had of about the trash on the lot. small container by lot, boys stay the but the evi- The three warned off the lot, was which upon chine went dence the does not show that private property companions the so had ever been warned. machine. purpose the looking the at the The evidence further shows that got by Ramirez The shirt of Francisco machine sleeve were attracted to the hand was caught parts in Thus his moving the and the “its colors and its injured. pulled wringer and One into the noise of coming steam therefrom and companions the at- attracted operation.” of Francisco’s machine in while employees in the store tention of one of opinion under We are of the that arm. released Francisco’s who came and jury were war the circumstances the effect, the wash finding, and ranted in in that to a cause was submitted nuisance, in judgment entered machine was an attractive ing was their verdict $1,100. say, pure matter of sum we cannot as a plaintiff’s favor in the Inc., pre- law, v. Beaumont that was not. Duron Montgomery Ward & 867; Tex.Com.App., Works, appeal. Iron 7 S.W.2d this sents Co., Tex.Civ.App. Supply v. Atlas Johnson effect, is, in Appellant’s first contention 31; Power Ft. Worth S.W. v. Johns case an ordi- the facts in this that under Co., Tex.Civ.App., Light 30 S.W.2d cannot, as nary washing machine Co., R. Charles v. El Paso Electric Tex. law, regarded anas a matter of 1094; Quisenberry Com.App., v. 254 S.W. ques- presents difficult Co., Tex.Civ.App., 63 S. Production Gulf unmindful of the fact We are not tion. Co., McCord W.2d Little v. James originat- “turntable cases” so-called Tex.Civ.App., McCoy v. S.W. Railway City ing with case of Sioux Co., Light Tex.Com.App., Power & Texas 657, 21 L.Ed. Company Stout, 17 Wall. v. 1105; Hogan v. 239 S.W. Houston Belt & verge law in hold- go near the Co., Tex.Civ.App., 148 Terminal R. S.W. injuries re- liable for ing the landowner Gerneth Galbraith-Foxworth years on children of tender by ceived Co., Tex.Com.App., 36 S.W.2d Lumber nuisance.” We theory “attractive rehearing, 38 S.W.2d Note in 36 on power- of the fact are also aware v. Marion page A.L.R. at Smith Fruit less are more or washing machines Co., 84 Kan. P. 845. & Bottle Jar use. Evidence was introduced in common re cited and The facts in Texas cases machin- tending show that one of these distinguishable appellant are by lied every fourth or in about might be found es bar. In Tex of the case at from the facts washing ma- Not these fifth home. Laughead, Tex. Public as Service chines, machines and de- many other appears Civ.App., 73 S.W.2d use. It be found in common vices'.are premises attracted to children were not now in a well said that we live cesspool, by could not see it as age. the road. this, however, all of we must Aside from Light & v. Citizens’ Electric Simonton not, whether or under here decide Co., Tex.Civ.App. 374, 67 S.W. Power evidence, shown and circumstances any machinery. The 530, did not involve was, washing machine as a was a common alleged attractive nuisance law, an attractive nuisance. The matter of spikes. pole light with found, response is- jury has Bihl, Tex. them, effect, Power Co. Texas-Louisiana that this sues submitted Com.App., is similar to the was an attractive nui- washing machine case. say, sance, we as a matter Simonton unless can not, it was Hayward Lumber In the case Isbell stand. jury must Tex.Civ.App. Company, 47 plaintiff num- been warned a had might be well here state that 'It stay premises. off of times to ber lot on passageway back of the which R. pub- of Rinker v. G. H. operating was In the case Tex.Civ.App., the court shown passageway. lic is further opinion that an knowledge properties and of seemed first to be of law car a matter which the as observes. opin- nuisance, hut an attractive Quisenberry See also v. Gulf Production “Any rehearing ion on said: Company, supra, same case before rul- opinion our in conflict main with *3 Appeals, Commission of hereby ing here announced is withdrawn.” Gerneth v. Galbraith-Foxworth Lumber and and remanded The case was reversed the Co., supra. therefore, court, held that necessarily Stimpson Appellant relies on the case of car, an of as matter Pipe Bartex Line Tex. could be an danger 473. The that case S.W.2d Appellant contends that any If falling. of there is danger any con washing not have machine did apparent a child danger should to cealed, any dangers, have, but that hidden or latent danger falling. of Courts it is the visible, open, patent dangers were apply reluctant to the attractive not be would and that therefore where doctrine cases overrule this contention. liable. We danger falling. was that is, char question dangerous here Was judg- record Finding no error in the washing acter machine latent ment will be affirmed. appreciation of' chil from concealed dren found age? tender Rehearing. Motion On issue No. their answer not sufficient Francisco Ramirez did have statement Appellant criticizes our ability understand the intelligence dangers pass-' boys were alley along which the near to or going incident to they the' time ing at the wringers ma touching By public alley. supported by the is chine. evidence and is more nothing we intended court. binding commonly used alley was one than that In Morris case of v. Carnarvon tres- were public, and that not by the Council, County is (Eng.) 1 K. B. appel- property private passers that, thing to determine whether a is a they were first attracted time at the lant danger, one hidden or concealed source washing machine. regard only to must have not the nature of alley belonged to It is true itself, thing also class cross had to that the railroad persons compelled or who are invited reaching the track before a service over it, knowledge, judgment, use physical strength however, such facts appellant; property of persons. those change situation opinion do not in our danger is the law considers concealed particular. any eye things hidden from confined to alone; carefully considered We have extends from hidden same is in rehearing and motion for appreciation person injured, hidden things overruled. combination