Dallas Fair Park Amusement Ass'n v. Barrentine

• Decision Date: 17 May 1916
• Docket Number: (No. 996.)
• Citation: 187 S.W. 710
• Parties: DALLAS FAIR PARK AMUSEMENT ASS'N v. BARRENTINE.
• Court: Texas Court of Appeals

187 S.W. 710

DALLAS FAIR PARK AMUSEMENT ASS'N v. BARRENTINE.

(No. 996.)

Court of Civil Appeals of Texas. Amarillo.

May 17, 1916.

On Motion for Rehearing, June 23, 1916.

Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.

Action by Thomas Barrentine against the Dallas Fair Park Amusement Association. Judgment for plaintiff, and defendant appeals. Reversed and remanded for a new trial.

W. H. Atwell, of Dallas, for appellant. Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for appellee.

HENDRICKS, J.

Thomas Barrentine, the appellee, was injured while in the employ of appellant, the Dallas Fair Park Amusement Association, at a merry-go-round. This particular merry-go-round was about 225 feet in circumference and 60 feet in diameter. It was inclosed by a series of doors, about 75 in all, the doors being about 3½ feet in width. In the center of the inclosure were the horses upon metal carriages, with sufficient room to make the circuit within the inclosure and to leave walking space for the patrons to get on and off the horses and still remain within the building or the main inclosure. The upper portion of the doors was glass, and at each unit there were two doors, swinging back to back, which could be fastened together and held in that position, and between each of the doors was a stob, driven into the ground, from 1 foot to 3½ feet in height, according to the variation in testimony. The doors, when open, were also probably fastened to these stobs. The appellee, at different times, for about 2 years prior to the accident, had been working around the carousel and, according to his own testimony, was familiar with the different kinds of work in the operation of said amusement feature. At the particular time, when the accident and injury occurred, the appellee was working "extra" and not on "weekly pay roll," though prior thereto he had enjoyed a considerable term of continuous employment. According to plaintiff's theory, the manager of the merry-go-round had ordered him to turn out the electric lights in that part of the inclosure where the accident occurred, and after a short intervening time he was also ordered, with others, to close the doors, containing the glass panels mentioned, preparatory to closing for the night; that in performing the particular work one of the doors would not close readily, and, in making the effort, he stumbled against one of the stobs, lost his balance, and in the attempt to guard his fall, pushed his hand and wrist through the glass panes of the particular door, producing the infliction of a severe wound, the loss of considerable blood, and the severing of some of the tendons in the wrist of that arm. He testified, on account of the turning out of the lights, it was "too dark to see a stob on the outside." On cross-examination, he testified:

"I have been closing those doors ever since I had been there for nearly 2 years. I have been going to those stobs every night, but I have never been warned about them. * * * I did not have to be warned about running over the stobs, * * * but I did not know anything about what the danger was of those stobs; I never had been told about it being dangerous to stumble over those stobs. If anybody had given me any warning about those stobs being dangerous, I certainly would have watched them. * * * I do not think that the reason I got hurt was solely on account of the fact that I had not been warned not to stumble over those stobs; that is not altogether the reason; it was on account of the darkness."

The appellee was 19 years of age at the time of the injury; had been working at the particular merry-go-round at intervals, for about 2 years, as stated, and had been upon his own responsibility for several years, independent of his father's control and support. The stobs had previously been painted white. The paint, however, had worn off by the weather and time, and the stobs were of the color of the ground. The inference is conclusive that appellee understood the details of the work contributing to the operation of the merry-go-round, and was thoroughly familiar with the surroundings of its make-up, and the presence and situation of the stobs as an obstruction in walking around the carousel under any conditions, whether night or day; the latter part of this statement limited in its meaning by the fact that on account of the darkness he could not see the particular stob at the time injured.

The following is one of the grounds of the motion for new trial, constituting the ninth assignment of error, in appellant's brief:

"Because the court erred in the third paragraph of his charge to the jury, wherein he instructed the jury, in substance, as follows, to wit: `And if you further find and believe from the evidence that a person of ordinary care, under the same or similar circumstances as you may find surround the defendant, would have warned plaintiff of such dangers or perils, if any, then you are further instructed that the defendant was guilty of negligence as the term is hereinafter used, because said charge placed a greater burden upon the defendant than the law requires, in that it required that the defendant should have warned the plaintiff even though the plaintiff knew of the danger of his employment; that is to say, the danger of stumping or stumbling or running against a stob which was driven into the ground.'"

The purpose of the rule requiring the master to warn and instruct the minor servant is to give information of unknown and unappreciated dangers. If the minor knows and appreciates the risks and dangers of his employment, the reason of the rule requiring an employer to warn does not exist. The law does not impose an unnecessary act. Tucker v. National Loan & Investment Co., 35 Tex. Civ. App. 474, 80 S. W. 879; Wiggins v. E. Z. Waist Co., 83 Vt. 365, 76 Atl. 36; Ewing v. Lanark Fuel Co., 65 W. Va. 726, 65 S. E. 201, 29 L. R. A. (N. S.) 487; Mitchell v. Comanche Cotton Oil Co., 51 Tex. Civ. App. 506, 113 S. W. 158; Labatt on Master and Servant, vol. 3 (2d Ed.) § 1155.

If the minor in reality possesses the knowledge, understands the risk, and appreciates the danger, the failure to warn is not the proximate cause of the injury, without which there can be no actionable negligence. Ewing v. Lanark Fuel Co., supra.

Of course it is the rule in this state that a minor must not only know the danger, but also the extent, and have the capacity to appreciate the same, in order to assume the risk. Justice Gaines said:

"It is not sufficient that he knows the employment is dangerous, but he must also be aware of the extent of the danger, and have the discretion to understand the risk, before he can be held to have assumed it. These are questions of fact to be determined by the jury." Texas & Pacific Ry. Co. v. Brick, 83 Tex. 602, 20 S. W. 513.

Appellee says that the Brick Case is conclusive of this case on the question of assumed risk. The plaintiff in that case, at the time of the accident, was nearly 19 years of age, in the employment of the receiver of the railway company, as brakeman, in the switchyards of a city. He was on some coal cars, being pushed up the incline to a coal chute track, for the purpose of coupling onto a car standing upon the level. He was on the front car, in going up the incline, for the purpose of being present to make a coupling, and, when within a few feet of the stationary car on the level track, he jumped from the moving car, struck a piece of coal, which turned with him, causing him to be thrown between the rails and injured. The track between the rails was not covered, and the coal chute was elevated several feet above the ground, constructed on a trestle. It was not distinctly shown "that he ever served upon the coal chute before the day of the accident," though he had served the receiver as brakeman for three months. He testified that if the track between the rails had been covered, he could have saved himself from injury. On the particular question, we do not believe, weighing the facts of that case and testing the decision as applied to the character of employment and the circumstances surrounding that plaintiff, that it is, by any means, wholly analogous to, and controlling of, this case. Quoting the Syllabus of the case of Tucker v. National Loan & Investment Co., which fairly reflects the opinion (35 Tex. Civ. App. 474, 80 S. W. 879):

"An experienced farm hand, though a minor, is held to have assumed risks incident to loading sheaf oats on a wagon frame and riding thereon over a road well known to him, and cannot recover for injuries sustained by the oats sliding and causing him to fall."

Associate Justice Fly said, adopting the language of the Court of Appeals of New York:

"He is bound to take notice of the ordinary operation of familiar laws, and to govern himself accordingly; and, if he fails to do so, the risk is his own."

In that case the verdict was against the minor, but it was affirmed upon the theory that erroneous instructions were harmless because the facts of the case would have supported a peremptory instruction. The case of Houston & Texas Central Ry. Co. v. Martin, 21 Tex. Civ. App. 208, 51 S. W. 641, decided by Justice Williams, when on the Galveston court, discloses this condition: Appellee was a section hand, engaged in unloading cross-ties from a flat car upon a railway switch track, and was hurt by some of the ties from the car falling upon him. The particular car was moved by use of pinch bars inserted behind the rear wheels, and was stopped by thrusting a piece of scantling in front of the wheels. The plaintiff himself placed the end of the timber upon the rail, standing beside it, and holding it in front of him, and when the wheel struck it, the piece of timber struck him, knocking him down, and the jolt of the car, passing over the timber, caused the ties to fall off the car and upon appellee. Appellee was a minor, employed for more than 2 years...