City of Brownwood v. Anderson

• Decision Date: 16 March 1936
• Docket Number: No. 4564.,4564.
• Citation: 92 S.W.2d 325
• Parties: CITY OF BROWNWOOD v. ANDERSON.
• Court: Texas Court of Appeals

92 S.W.2d 325

CITY OF BROWNWOOD v. ANDERSON.

No. 4564.

Court of Civil Appeals of Texas. Amarillo.

March 16, 1936.

Appeal from District Court, Brown County; E. J. Miller, Judge.

Action by Mrs. Ruth Anderson against the City of Brownwood. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

R. L. McGaugh, J. C. Darroch and E. M. Davis, all of Brownwood, for appellant.

Callaway & Callaway, of Brownwood, for appellee.

JACKSON, Justice.

The appellee, Mrs. Ruth Anderson, a widow, instituted this suit in the district court of Brown county, to recover damages for the death of her son, Robert Otto Anderson, which she claimed was occasioned by the negligence of the agents, servants, and employees of appellant, the city of Brownwood, a municipal corporation.

She alleged the city owned and operated, in improving and maintaining its streets, two Baker-Manley self-loading scrapers, described in her petition, and that some weeks prior to November 17, 1934, it placed the scrapers on a vacant lot near the intersection of Fisk avenue and Highway No. 10, and left the dirt boxes on the scrapers in an elevated position; that the box on such a scraper is hoisted and held in such elevated position by a chain, easily released by a trigger, and when so released the box collapses and the back wall thereof and a bar on the front of the scraper come together with great force, something like the jaws of a powerful steel trap. That the machines, with their seats, wheels, dirt boxes, chains, levers, handles, and bright color, were very attractive, constituted an invitation to children to play thereon, and were especially dangerous because of the position in which the dirt boxes were left; all of which was well known to the city. That it placed no warning of such danger, erected no guard or fence to prevent children from going upon and playing on the machines, and such acts and conduct were negligence and the proximate cause of the death of deceased and appellee's damages. That her son Robert was strong, healthy, and active physically, very bright, energetic, and industrious, quick in his studies, and had reached the third grade in school, but he did not and could not realize and appreciate the dangerous character of the scrapers or the risk of suffering injury by playing thereon.

The city answered by general demurrer, special exceptions, general denial, and alleged that it left the scrapers in a safe condition, and if at the time of the death of plaintiff's son a dangerous condition existed, it was due to the act of some trespasser or stranger who had moved the scrapers and left them in a dangerous condition of which the city had no knowledge; that the deceased was a very bright and intelligent boy, had sufficient understanding to know and appreciate the danger, and was a trespasser on appellant's premises, and that both he and the plaintiff were guilty of contributory negligence.

In response to special issues the jury found that appellant left the scrapers with the dirt boxes raised so as to be easily collapsed at the place where the deceased received his injury; that the scrapers had not been moved nor the dirt boxes raised since left by the city; that leaving the scrapers at such place and in the condition they were was negligence, and such negligence was the proximate cause of the death of appellee's son; that the value of his services prior to reaching his majority, over and above the expense of his care and education, would have been $1,500, and he would have contributed to the support and maintenance of appellee after he reached his majority $3,500; that the reasonable and necessary funeral expenses paid by appellee were $137.50; and that the appellee was not guilty of contributory negligence.

Upon these findings judgment was rendered in favor of appellee for the sum of $5,137.50, with interest from the date of the judgment at the rate of 6 per cent. per annum.

The appellant challenges as error the action of the court in failing and refusing to submit to the jury the issue of the contributory negligence of the deceased because it objected and excepted to the court's charge in the following language: "Defendant objects and excepts to the charge as a whole because it does not submit to the jury for their finding the question of whether or not the deceased child was guilty of contributory negligence in going in, on and about the scraper belonging to the City at the time of his death."

The appellee contends that the issue of the contributory negligence of the deceased was waived by appellant because it did not prepare and present to the court a question submitting such an issue.

The testimony shows without dispute that the vacant lot on which the scrapers were left was the property of the city; that the deceased was over eight years old when injured, was healthy, energetic, and intelligent, bright in his studies, and had a sense of responsibility; that with two younger boys he went, on November 17, 1934, to the vacant lot where the machines were, and while playing on one of the scrapers the dirt box collapsed and inflicted the injuries from which he died in a few minutes.

"It has been held by numerous decisions that a child under the age of seven years is presumed not to have discretion such as will enable him to avoid danger or dangerous places, and that as to children between the ages of seven and fourteen years, it is a question of fact as to whether they possess such discretion." Johns v. Fort Worth Power & Light Co. (Tex.Civ.App.) 30 S.W.(2d) 549, 557 (writ refused).

Appellee alleged in effect that on account of his immature years her son did not appreciate the danger to which he exposed himself, but his incapacity was an issue of fact to be determined by the jury because the testimony is that he was more than eight years of age, energetic, bright, and intelligent, with a sense of responsibility.

"This does not bring him within the age at which courts have held a child to be exempt, as a matter of law,...