60 Tex. 205 | Tex. | 1883
Taken and considered together as a whole, we have come to the conclusion that the district court committed no error by its action in sustaining the exception and demurrer to the pleadings of the appellants as amended.
There is no averment in the amended petition that can be properly said to charge such negligence on the appellee, under the facts detailed, as would make it, under our previous rulings, responsible in damages to the appellants.
There is an averment to the effect that the moving car was detached from the engine, and that there was no person on it at the time when the child was killed by it. But it is not distinctly stated, nor does it anywhere sufficiently appear from the pleadings, that this act of negligence of appellee, if indeed under the special facts set up in this case it can be called negligence to have no one on the moving car in question, was the direct cause of the injury. It is not alleged that the presence of some one on the car would have prevented the accident.
It is nowhere alleged or pretended that, after the child attempted the fatal leap, any care or diligence on the part of the appellee could have saved his life. On the contrary, it is shown with reasonable clearness and certainty from the pleadings of appellants, that the appellants were informed and had been made aware of the danger that attended the playing of children on the platform in question, and that they had information, at the very least, that children did frequently expose themselves to danger there.
Their pleadings disclosed the fact that, under the circumstances, it was dangerous for children of tender years to so expose themselves. It was, as appears from their own version of the matter, the fault of the appellants that so young a child as the deceased was permitted or allowed to be exposed to such danger; and though, owing, to its tender years, negligence in this respect of himself, or even of his parents, could not be charged against him (G., H. & H. R’y Co. v. Moore, 59 Tex., 64), yet when the suit is brought, as in this case, by the surviving parents, very properly, in considering the question of recovery, a different rule will govern.
In this case, this negligence of appellants which could not be imputed to the child will be considered in quite a different light when the suit is brought for the benefit of the appellants. They, it appears, were guilty of negligence in exposing their child to danger. To this extent they contributed to the fatal result, and under the circumstances as alleged, being in fault, they cannot recover.
There is no pretense that the injury was inflicted designedly or
Under all the facts as set forth, we are of the opinion that neither the child, if living, nor its surviving parents can maintain this] action.
This case differs widely from the two cases of Evansich v. G., C. & S. F. R. R. Co., 57 Tex., 123 and 126, and of Tex. & P. R. R. Co. v. O’Donnell, 58 Tex., 28.
It is also very different in its features from the case of H. & T. C. R. R. Co. v. Simpson, vol. 2, p. 107, Tex. L. Rev., and from the case of The Gal., II. & II. R’y Co. v. Moore, 59 Tex., 64. All these cases, and as many others as have been accessible to us, have been examined with great care. Cooley on Torts, pp. 660-663, and notes.
We are of opinion that there is no error in the judgment, and that it ought to be affirmed.
Affirmed.
[Opinion delivered October 23, 1883.]