City of Lubbock v. Bagwell

Decision Date30 October 1918
Docket Number(No. 1402.)
Citation206 S.W. 371
PartiesCITY OF LUBBOCK v. BAGWELL.
CourtTexas Court of Appeals

Appeal from District Court, Lubbock County; W. R. Spencer, Judge.

Action by Stancil Bagwell, by his father as next friend, against the City of Lubbock. Judgment for plaintiff, and defendant appeals. Affirmed.

J. E. Vickers and Roscoe Wilson, both of Lubbock, for appellant.

Bean & Klett and W. H. Bledsoe, all of Lubbock, for appellee.

HUFF, C. J.

Stancil Bagwell, by his father, next friend, sued the city of Lubbock for damages sustained by an injury received from the explosion of dynamite caps alleged to have been placed by the employés of appellant, so as to attract the attention of a child of the age of appellee. The city was digging a ditch in the street by or near the home of appellant, for the purpose of placing therein a sewer for the city and for the convenience of the people thereof. The work was directed by a superintendent and foreman, and at the point near the premises of appellee's father it was necessary to excavate by the use of explosives. For this purpose dynamite and dynamite caps were purchased and used. At the end of the day's work the foreman placed a box of dynamite caps on the plate of a shed or chicken house belonging to the father of appellee and on his premises near an alley running back of the shed. The caps were in a red box, unlocked and placed on the plate of the shed about five feet and two inches from the ground. The appellee was a boy nine years old when he received the injury. He was out playing in the alley back of the shed, and the little red box attracted his attention. There were two meter boxes, one on top of the other, near the shed. These boxes were nearer to a lower shed than the chicken house. He got on the boxes, and from them got onto the lower shed, and from that one reached the box and opened it, finding about twenty dynamite caps, and he took therefrom two of the caps and placed them in his coat pocket. The next evening at home he tried to solder the two caps together by using a little rod of iron which he had heated, and in doing so exploded the caps, which tore off his hand, or lacerated it so that amputation at the wrist joint was necessary. His eye, face, and other portions of his body received injury, but not permanent. The boy says that he thought the caps were cartridge shells, and that he got the idea of soldering them from a plumber who had been at work on pipes in his father's house; that pieces of solder used by the plumber had been left, and he found it, and with the hot iron tried to solder them, when the explosion occurred. His father and mother were present in the room at the time, and just previous to the explosion the father had told the boy to stop playing in the fire. The boy stopped, and moved to another place, but continued his undertaking with the iron. The father and mother were both reading at the time, and did not know what the boy had, and did not know that he had the dynamite caps or had found them, or that he was trying to solder them. They appear not to have known that the employés of appellant had placed a box of caps on the house plate. The evidence is sufficient to show that the employés knew children were around the place. It was not far from the school which the children were then attending, and they passed the place where the work was being done frequently.

The first assignment is that the court erred in refusing to give specially requested charge No. 1, because (a) the undisputed facts show that the injury was too remote to have been anticipated by the defendant or its employés, and the question of remoteness is one of law and should not have been submitted to the jury; (b) under the undisputed facts a peremptory instruction should have been given for the defendant. Under this assignment appellant presents two propositions, which are substantially the same as the propositions in the assignment. The appellee objects to the consideration of this assignment, propositions and statements thereunder, because not briefed according to the rules. Some of the objections made are well taken, but we have concluded to consider the assignment.

Our Supreme Court has approved a definition of proximate cause formulated by the Supreme Court of the United States. Railroad Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256:

"But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances."

Our court also in that case quoted the following from Seale v. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602:

"If the intervening cause and its probable or reasonable consequences be such as could reasonably have been anticipated by the original wrongdoer, the current of authority seems to be that the connection is not broken."

After the above quotations, Judge Gaines, for the court, said:

"It follows that, in our opinion, the question of probable cause ought to depend upon the further question whether a reasonably prudent man, in view of all the facts, would have anticipated the result — not necessarily the precise actual injury, but some like injury, produced by similar intervening agencies." Ry. Co. v. Bingham, 90 Tex. 223, 38 S. W. 162.

In the case of Ry. Co. v. McFadden, 89 Tex. 138, 33 S. W. 853, the carrier suffered cotton to remain on a compress platform, exposed to fire from passing engines, several days after it was compressed, which was found to be negligent. It was contended in that case such delay was not the proximate cause. The court in that case, after quoting from the ...

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