Braun v. Trustees of Victoria Independent Sch. Dist., 10258.

• Decision Date: 03 March 1938
• Docket Number: No. 10258.,10258.
• Parties: BRAUN et al. v. TRUSTEES OF VICTORIA INDEPENDENT SCHOOL DIST.
• Court: Texas Court of Appeals

114 S.W.2d 947

BRAUN et al. v. TRUSTEES OF VICTORIA INDEPENDENT SCHOOL DIST.

No. 10258.

Court of Civil Appeals of Texas. San Antonio.

March 3, 1938.

Rehearing Denied March 30, 1938.

Appeal from District Court, Victoria County; J. P. Pool, Judge.

Action by Otto Braun, individually and as next friend for his minor daughter, Helen Braun, against the Trustees of the Victoria Independent School District for personal injuries suffered by Helen Braun while in attendance as a student at a school operated by the school trustees. From a judgment dismissing the action plaintiff, in his individual and representative capacity, appeals.

Affirmed.

C. C. Carsner and J. W. Ragsdale, both of Victoria, for appellant.

Linebaugh & Guittard and Crain, Vandenberge & Stofer, all of Victoria, for appellee.

MURRAY, Justice.

Otto Braun, for himself, individually, and as next friend for his minor daughter, Helen Braun, instituted this suit against the board of trustees of the Victoria Independent School District to recover damages for personal injuries alleged to have been suffered by Helen Braun while in attendance as a student at the Victoria public school, known as the Mitchell School, and operated by the school trustees.

The petition reads in part as follows:

"Fourth. That on or about the 30th day of November, A. D. 1936, the said Helen Braun, then a minor of tender age and immature judgment, was in attendance upon the public schools, operated by the Board of Trustees of the Victoria Independent School District, and was on the said date aforesaid in attendance as was her duty and obligation and as she was bound to do under the laws of the State of Texas, at the public school known as the Mitchell School belonging to the school system operated by the Board of Trustees of The Victoria Independent School District, and on or about said date or on said date while so in attendance upon said Mitchell School and during school hours at approximately 2 o'clock p. m. and during the afternoon recess, the said Helen Braun was standing on the buttress to the left side of the front steps or the West side of the front steps of the Mitchell School building, together with two or three other of her girl schoolmates, a small boy who also attended the said Mitchell School and who was on the front steps of said school building, fell against or was pushed against the said Helen Braun, and caused the said Helen Braun to fall backward off the said buttress into and upon the waxleaf ligustrum tree which had been planted near and underneath said buttress by the permission and consent of the Board of Trustees of The Victoria Independent School District, and at their direction and by their agents, employees and servants and should the plaintiff be mistaken in this, then they herein allege that said ligustrum tree was planted with the permission and consent of the Board of Trustees of the Victoria Independent School District, or after being planted there was negligently and knowingly permitted to remain there.

"Fifth. That prior to the 30th day of November, A. D. 1936, and the accident alleged in the preceding paragraph, the ligustrum had been (trimmed) or pared by the agents, employees and servants of the Board of Trustees of the Victoria Independent School District, or if not by the agents, servants and employees of the Board of Trustees of the Victoria Independent School District, then said ligustrum tree had been negligently pared and pruned by some person with the consent of the Board of Trustees of the Victoria Independent School District in such a manner as to leave a number of limbs or branches of said ligustrum tree, immediately underneath and near the buttress of the west side of the front steps of the Mitchell School, and said pruning and paring was so negligently done as to leave many sharp pointed limbs and branches near and immediately underneath said buttress, said limbs and branches resembling spears and daggers, easily apparent and visible and known to exist by the Board of Trustees of The Victoria Independent School District and their respective members, their teachers, agents, employees and servants, and/or could and should have been known by them by the exercise of ordinary care; that the limbs and branches of a ligustrum tree are exceedingly stiff, unyielding, and approach nearly the stiff and unyielding characteristics of metal as near as any shrub or plant or tree; that condition of said ligustrum tree, with its branches and limbs, was known to the Board of Trustees of the Victoria Independent School District, and to the respective members thereof and to its teachers, agents, employees and servants and could and should have been known to them by the exercise of ordinary care; that said condition of said tree had been permitted and allowed to exist over a period of several months prior to November 30th, A. D. 1936; that the children of the Mitchell School habitually walked upon and stood upon the buttresses to the front steps of the school building, and custom of the children to walk upon and stand upon said buttresses was well known to the Board of Trustees of the Victoria Independent School District, its respective members, its teachers, agents, employees and servants, and the children had not been forbidden or warned not to walk upon or stand on said buttresses, that the buttresses and litgustrum tree in close proximity thereto had been erected by the Board of Trustees of the Victoria Independent School District; that the buttresses were so constructed as to excite the interest and curiosity of children of immature age and judgment, such as Helen Braun, the minor plaintiff herein, and other children of her age, who attended said Mitchell School, and said buttresses as they were constructed in proximity to the playgrounds and front steps of said building was an open invitation held out by the Board of Trustees of the Victoria Independent School District to the children attending said school to stand upon, walk on and play around said buttresses; that said buttresses were calculated to attract and did attract children of said school to so walk upon and stand on and play around said buttresses and the permitting of the planting of the ligustrum tree and/or permitting it to remain there, and the pruning thereof as above described, created and established or permitted to be created and established by the Board of Trustees of the Victoria Independent School District, a hazardous and dangerous condition upon the school grounds of the Mitchell School and the Board of Trustees of the Victoria...