City of Menard v. Coats, 4047.

• Decision Date: 24 May 1933
• Docket Number: No. 4047.,4047.
• Citation: City of Menard v. Coats, 60 S.W.2d 831 (Tex. App. 1933)
• Parties: CITY OF MENARD v. COATS.
• Court: Texas Court of Appeals

Page 831

60 S.W.2d 831

CITY OF MENARD v. COATS.

No. 4047.

Court of Civil Appeals of Texas. Amarillo.

May 24, 1933.

Appeal from District Court, Menard County; Carl Runge, Judge.

Action by J. F. Coats, Jr., a minor, by his mother and next friend, against the City of Menard, and another. From a judgment for plaintiff against defendant named, defendant named appeals.

Reversed and remanded.

Frank Hartgraves and Joe P. Flack, both of Menard, for appellant.

Frank C. Dickey, of Ballinger, for appellee.

HALL, Chief Justice.

The appellee, a minor, by his mother as next friend, filed this suit against the city of Menard and the Menard Irrigation Company to recover damages which it is alleged the plaintiff sustained in an irrigation ditch near the courthouse in the city of Menard.

The facts are, briefly stated, that the irrigation company had a canal about eighteen feet wide and about five feet deep which ran through the city of Menard and through the courthouse square. Some one had created a park there and as part of the improvements had erected a large water wheel about twenty feet in diameter, which was made to revolve by the water flowing against flanges or projections placed at intervals around the circumference of the wheel. It is alleged that both defendants had allowed small children to bathe and swim in the irrigation canal and knew that they were doing so; that the city supervised and controlled the property as a park and a public resort; that the wheel was "an inherent dangerous device and structure and was calculated to and did result in the injury herein complained of. That the wheel was unguarded and unprotected by any railing or other bar, the water flowed swiftly under it and children swimming in the stream were reasonably calculated to be carried beneath the wheel by the current. That on the occasion in question the plaintiff, who was then less than ten years of age, was caught under one of the flanges or projections and was crushed against the bottom of the canal." The petition further sets out in detail the injury sustained, the extent of his lacerations, the employment of a physician, and the expenses incident to his sickness and treatment. Plaintiff then charges that the irrigation company was guilty of negligence in that they built, maintained, owned, possessed, and controlled the ditch and knowingly permitted plaintiff and other children to use the same as a bathing pool; that they permitted the water wheel to be placed in said ditch and failed to build and construct guards and brakes in front of the wheel upstream from the same so as to prevent children from being caught in the wheel.

The negligence of the city as charged is that its agents and employees built and contributed to the building and caused to be constructed and maintained said water wheel in the position and condition aforementioned and failed to build and construct guards and safety devices upstream to prevent children from being caught under the wheel; that they failed to maintain the premises and the structure in a safe condition; and that the negligence of each was the proximate cause of the injury. He alleges he suffered damages in the sum of $25,000.

The defendants filed separate answers.

The city answered by general demurrer and special exceptions and alleged: That it had no control over the land through which the ditch ran, but that the land belonged to Menard county. The county maintained a park and employed a keeper and directed him in his work and the city had no authority over the keeper, either to hire or discharge him or to direct the work in any way. That the city received no income from the park, but that it was owned and controlled by the county authorities. That the city did not own or control the ditch running through the courthouse yard; that it did not erect or assist in erecting the water wheel and did not maintain the same nor did it consent to the wheel being placed where it was and had no right to demand that it be removed. That the wheel was erected at the cost of Menard county alone. That the plaintiff, J. F. Coats, Jr., was ten years of age at the time he was alleged to have been injured and was a healthy, robust, active boy, accustomed to playing all kinds of games and swimming, was well acquainted with the water wheel in the ditch, and aware of the danger of being caught under it. That at that age and that time he was sui juris and in going into the canal above the wheel he was guilty of contributory negligence.

The irrigation company answered by general demurrer and several special exceptions and alleged that the courthouse yard was the property of Menard county; that the only interest it had was an easement or license acquired by prescription from the county for the purpose of running water across the land for irrigation purposes only; that it had no deed to the property and no right to prevent Menard county from erecting bridges or other structures in, along, or across the ditch, so long as such structures did not materially interfere with the flow of the water; that the county officials of Menard county erected said wheel in the ditch at the cost of the county and that the irrigation company derived no benefit or revenue therefrom; that the county had for a number of years maintained a lawn or yard in connection with its courthouse grounds and had built various bridges and other structures, including the water wheel, for the purpose of beautifying the park and making it more serviceable and attractive; that the irrigation company had no part in any of said work and did not own or maintain the park.

There was a trial to the court without a jury, resulting in a judgment that the plaintiff recover of the city of Menard the sum of $250 and denying a recovery against the irrigation company. Both the plaintiff and the city of Menard excepted and gave notice of appeal, but the city alone has brought the case to the appellate court for review.

The material facts, as shown by the statement of facts, are, in substance as follows:

The boy who was injured was nearly ten years of age at the time of his injury. His statement shows that he was, with other boys, bathing in the irrigation canal upstream from where the wheel was situated; that there was a bridge and a sidewalk across the canal about twelve or fifteen feet upstream from where the wheel was located and also a bridge across the stream west of the first mentioned bridge. He says that there was quite a lot of bathing done in the stream where it ran through the park, but they usually went in bathing on the east side down the stream from the wheel because the water there was deep enough to dive in and that very...