Gulf, C. & S. F. Ry. Co. v. McWhirter

• Citation: 14 S.W. 26
• Court: Supreme Court of Texas
• Decision Date: 18 April 1890
• Parties: GULF, C. & S. F. RY. CO. v. McWHIRTER.

14 S.W. 26

GULF, C. & S. F. RY. CO. v. McWHIRTER.

Supreme Court of Texas.

April 18, 1890.

Appeal from district court, Lampasas county.

Matthews & Wood, for appellant. W. B. Abney, for appellee.

STAYTON, C. J.

This action was instituted by Lewis McWhirter, a minor, by his next friend and father, J. C. McWhirter, against the Gulf, Colorado & Santa Fe Railway Company, for the recovery of damages for injuries sustained by plaintiff while playing with other children on defendant's turn-table in the city and county of Lampasas. The plaintiff alleges that defendant negligently permitted the turn-table to remain unguarded and unfastened; that it was a dangerous machine, and calculated to attract the attention of children; that plaintiff, then five years of age, and not knowing the danger thereof, went upon the turn-table, and, while it was being revolved by other children, had his leg and hip caught therein, whereby he was seriously injured. The damages claimed were $2,500. Defendant filed its first amended answer, consisting of general and special exceptions, general denial, and also the following special defenses: "(1) The contributory negligence in plaintiff's parents, who, knowing the danger thereof, permitted plaintiff to play on the turn-table. (2) That plaintiff was induced and permitted to go on the turn-table by his older brothers and sisters, who were of sufficient age and intelligence to be responsible for their own negligent acts, and that the said older brothers and sisters of plaintiff caused the injury to plaintiff by putting the turn-table in motion; the said older brothers and sisters, at the time and place of the accident, having the charge, care, and custody of plaintiff. (3) That at the time of the accident the plaintiff and other older children, who were of sufficient age and intelligence to be responsible for their negligent acts, were playing on the turn-table, and such older children, knowing that plaintiff was so situated on the turn-table that if the same was revolved an injury to him would be certain, negligently caused said turn-table to be revolved, whereby plaintiff was injured; all of said children then being trespassers on defendant's property." The cause was tried, resulting in a verdict and judgment for plaintiff for the sum of $1,233.33.

Henrietta McWhirter, a sister of plaintiff, who was the only witness that testified in regard to the accident by which plaintiff was injured, testified as follows: "On March 10, 1886, when my brother Lewis McWhirter was hurt, he was about five years old. We were riding on the turn-table with some boys and girls. There were five or six of us. Just as we stopped, the plaintiff tried to climb upon the turn-table, and some one gave it a push, and caught his leg between the turn-table and the ties, and mashed it. * * * I had played on the turn-table before. It was neither fastened, inclosed, or guarded. We were in the habit of playing there. I was not on the turn-table when Lewis got hurt. I was close by at the time. I was then 14 years old. Kate Bessonette, who was with us, was about my age. Bill Holder, who was there at the time of the accident, was about 15 years old; and my brothers Willie and Jim, aged, respectively, 10 and 7 years, were there. Robert Gibson, aged about 13 years, was there. The turn-table was just stopping when Lewis tried to get on it. I don't know which one of the boys pushed it. Will Holder was at the head of the turn-table, and he had just been pushing it. He and Bob Gibson had just been pushing it for us. It was one of them, or my little brother Willie, that pushed it. I was quite near to Lewis when he got hurt, — not over four or five feet. * * * Lewis could not move the table himself. My brother Willie could turn the table. Holder and Gibson came down while we were there. There was no grown person with us. Either of the other boys, except Lewis or Jimmie, could move the turn-table."

The court, in its charge, made the liability of appellant to depend on the negligent condition in which its turn-table was kept; and no objection is made to the charge in this respect, nor claim that the turn-table was kept in proper condition. It is claimed, however, that the court erred in giving the following charge: "If, from the evidence, you believe plaintiff was injured, but further believe that the same was caused by other parties than defendant's agents and employes revolving said table, and if you believe such other parties were of such age and intelligence as to know the danger of revolving such table, and of such age and intelligence as to be responsible for their own negligent acts, then, if you so believe, you should find for defendant. But, if you should believe from the evidence that such other parties were not of such age, discretion, and intelligence as to realize the danger of their acts, and negligence in the transaction, then the defendant would be responsible," etc. "Whether or not the person who the proof may show revolved the table was of...