365 S.W.2d 26 (Tex.Civ.App.

CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
Citation365 S.W.2d 26
Docket Number14047.
PartiesHOUSTON LIGHTING & POWER COMPANY, Appellant, v. Larry C. REED et al., Appellees.
Date31 January 1963

Page 26

365 S.W.2d 26 (Tex.Civ.App. —Houston 1963)

HOUSTON LIGHTING & POWER COMPANY, Appellant,

v.

Larry C. REED et al., Appellees.

No. 14047.

Court of Civil Appeals of Texas, Houston

January 31, 1963

Rehearing Denied Feb. 21, 1963.

Page 27

McLeod, Mills, Shirely & Alexander, V. W. McLeod, Galveston, for appellant.

Burch Downman, Houston, Baker, Callahan & Brady, Galveston, for appellees.

COLEMAN, Justice.

This is an appeal from a judgment, entered by the trial court pursuant to the verdict of a jury, for the damage sustained by a small boy when heran into the lid of a tool chest extending out from the side of a truck belonging to appellant.

The principal ground on which this appeal is based is that the trial court erred as a matter of law in refusing to hold that there was no negligence on the part of appellant that was a proximate cause of the injury sustained by appellee.

This suit was brought by Addie Mae Reed as next friend for her son, Larry C. Reed. At the time he received the injury for which he seeks compensation in this suit, Larry was about four years of age. He lived in a house which fronted on an alley in the City of Galveston. Just before the incident in question he was playing in the alley with some other children. One of defendant's trucks was driven into the alley by Oran Hopkins, one of defendant's employees. Mr. Hopkins knew that residences fronted on this alley and that children played in the alley. The driver parked the truck on his lefthand side of the alley about two and one-half feet from a garage. This truck had a metal body built on it which extended over the rear wheels to a point about even with the front fenders. This portion of the body was used for storing tools and materials. A door opened on the side of the body to permit entry to the storage compartment. When open the door formed a shelf supported by hinges and chains at both ends. The bottom of the door, as reflected by a picture introduced into evidence as Defendant's Exhibit No. 3, is 37 1/2 inches to the ground. The door appears from the exhibit to be 3/4 of an inch thick. The testimony reveals that, when open, the door extends out from the truck a distance of 1 1/2 feet.

After parking the truck the driver and Mr. Charles Fowler, a lineman employed by the Company, opened the tool compartment

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and got certain tools and equipment. They then went about their duties leaving the door to the tool compartment open and the truck unattended.

Addie Mae Reed walked a short distance past the truck and stopped to talk to a friend. While she was so engaged, Larry ran up the alley toward his mother while looking back at his playmates. He ran between the truck and the garage, although the space was narrow and there was ample room to pass on the other side of the truck. While attempting to run through this narrow passageway, he struck the door to the tool compartment with his head, cutting his left eye. As a result of this injury his left eye was surgically removed.

The jury found that appellant was negligent in failing to close the lid to the tool compartment on the truck and that the negligence was a proximate cause of the injuries sustained by Larry Reed. The jury also found that the failure of appellant to attach a warning flag or other warning decvice on or near the lid of the tool compartment was negligence and a proximate cause of the injuries sustained by Larry Reed. The jury failed to find any contributory negligence.

It is appellant's contention that as a matter of law appellant could not reasonably have foreseen that a child would run into the lid of the tool compartment and injure himself as a result of their failure to close the lid or to place a warning device near it. Appellant is not contending that it owed no duty of care to one lawfully using the alley. Appellant further contends that it could not have reasonably foreseen that the injury to Larry Reed would have occurred as a consequence of the acts of omission found by the jury, and that, therefore, as a matter of law appellant's conduct could not have been the proximate cause of the injury suffered by Larry Reed.

The present state of the law in Texas on these questions is succinctly stated in Genell, Inc. v. Flynn, Tex.Sup.1962, 358 S.W.2d 543, as follows:

'Although injury may result from a person's act or omission, yet, if the actor could not have reasonably foreseen the resultant injury, or injuries, similar in character, he is not to be held responsible therefor. Liability is grounded in the public policy behind the law of negligence which dictates that every person is responsible for injuries which are the reasonably foreseeable consequence of his acts or omissions. A person is not legally responsible for consequences which cannot be foreseen. Liability for negligence rests primarily on reason to anticipate injury and failure to perform the duty arising on account of such anticipation. See Texas & Pacific Railway Co. v. Bigham, 90 Tex. 223, 38 S.W. 162, 163 (1896); Uvalde Construction, Co. v. Hill, 142 Tex. 19, 175 S.W.2d 247 (1943). It is recognized in this state that anticipation of consequences is a necessary element in determining whether the injury complained of is proximately caused by such act or omission. Actual anticipation, of course, is not in any sense the test, but what one should under the circumstances reasonably anticipate as consequences of his conduct. See City of Dallas v. Maxwell, Tex.Com.App., 248 S.W. 667, 670, (1923) opinion approved by the Supreme Court, 27 A.L.R. 927; East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613 (1949); Dallas Ry. & Terminal Co. v. Black, 152 Tex. 343, 257 S.W.2d 416 (1953); Houston Lighting & Power Company v. Brooks, 161 Tex. 32, 336 S.W.2d 603 (1960).'

Appellant parked its truck 2 1/2 feet from a garage in a public alley where it knew children frequently played. After the lid of the tool box was opened, only one foot of passageway remained unobstructed. The gray metal lid 18 inches wide by 3/4 of an inch thick would be difficult to see by

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one whose eyes were approximately on the same level. In determining what constitutes ordinary care all of the attending circumstances must be considered. Since this was a public alleyway in which small children were known to play, appellant knew, or should have known, that one of them would probably run between the truck and the garage. The fact that more space for passing existed on the side of the truck near the center of the alley is not important in determining the existence of negligence vel non where children at play are concerned. The habits of children at play are matters of common knowledge which appellant will be deemed to know. Nesmith v. Magnolia Petroleum Co., Tex.Civ.App., 82 S.W.2d 721; Pacific Greyhound Lines v. Vermillion, Tex.Civ.App., 87 S.W.2d 312, dism.; Texas General Utilities Company v. Nixon, Tex.Civ.App., 81 S.W.2d 250.

Appellant should have anticipated that if a child attempted to run between the truck and the garage, when 60% of the available space was blocked by a metal lid with sharp corners, and when it would be difficult for a small child to see the lid because of its size and color, such a child would probably receive injuries by reason of a collision with the lid. The answers returned by the jury to the issues submitting negligence and proximate cause are supported by evidence of probative force and the trial judge did not err in rendering judgment based on such answers. Collins v. Pecos & N. T. Ry. Co., 110 Tex. 557, 212 S.W. 477; Dallas Ry. & Terminal Co. v. Black, 152 Tex. 343, 257 S.W.2d 416.

Appellant also complains of the failure of the trial court to submit certain requested issues by which it sought to establish that Addie Mae Reed failed to keep proper custody and control over Larry Reed and that such failure was the sole proximate cause of his injuries. This question was recently considered by...

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