Dublin Cotton-Oil Co. v. Jarrard

• Decision Date: 02 December 1897
• Citation: 42 S.W. 959
• Parties: DUBLIN COTTON-OIL CO. v. JARRARD et al.
• Court: Texas Supreme Court

Page 959

42 S.W. 959

DUBLIN COTTON-OIL CO. v. JARRARD et al.

Supreme Court of Texas.

December 2, 1897.

Error to court of civil appeals of Second supreme judicial district.

Two actions, consolidated and tried together, —one by Hattie Jarrard for herself, and the other by her mother, Mary A. De Witt,— against the Dublin Cotton-Oil Company. A judgment for plaintiffs was affirmed by the court of civil appeals (40 S. W. 531), and defendant brings error. Affirmed.

Lindsey & Goodson, for plaintiff in error. Ball & Temple and Pruit & Smith, for defendants in error.

DENMAN, J.

Hattie Jarrard, a child between seven and eight years old, was injured by having her foot caught in certain machinery erected and operated by the Dublin Cotton-Oil Company upon its own premises, and this suit was brought to recover damages therefor. Hattie Jarrard sued to recover in her own behalf, and her mother, Mary A. De Witt, sued to recover damages for the loss of the services of her child. The plaintiffs in their pleadings rested their cause upon two distinct propositions: (1) That defendant was guilty of negligence in permitting and allowing Hattie to enter the buildings where dangerous and attractive machinery was being operated; and (2) that it was guilty of negligence in inviting her into the building. The two suits were consolidated, and, upon a trial before a jury, verdict and judgment were rendered for both plaintiffs, which being affirmed by the court of civil appeals, the company has brought the cause to this court on writ of error. We will not undertake a discussion of the various questions referred to in the opinion of the court of civil appeals, as many of them are not presented here, and the law confines us to the assignments contained in the application to this court for writ of error.

The first assignment here urges the proposition that the trial court erred in its charge, in that it therein permitted a recovery by the mother without submitting the question to the jury as to whether she was guilty of contributory negligence. We are of opinion that the court of civil appeals correctly overruled this assignment, "because the matter of contributory negligence on the part of the mother, as complained of, was not raised by the pleadings of the defendant, or by the evidence."

The second assignment complains of the refusal of the trial court to give the following charge requested by the defendant: "You are charged that if you believe from the evidence that, immediately prior to the day on which Hattie Jarrard was injured, the defendant, through its agents and servants, or through the teachers of the said Hattie Jarrard, had warned and forbidden her to come about said mill and machinery, or on or about said premises, then you will not consider that the said Hattie Jarrard had any right or authority to enter upon said premises by reason of the fact that children had theretofore been permitted or allowed by the defendant to come upon or around said premises, as no implied invitation or permission, by reason of children having theretofore been allowed to come upon said premises, can be considered by you, as against the positive orders and warnings of the defendant, forbidding her to come upon said premises or around said machinery." There was evidence tending to show that children had been habitually allowed to come into the building where the machinery was located; that, before leaving the school house on the day of the injury, Hattie's teachers warned her not to go about the mills, and that this warning was given at the instance of the manager of the mill (but the evidence does not indicate that Hattie Jarrard was informed that such warning was given at the instance of such manager); that just before the injury some little girls, with Hattie Jarrard, were observed by defendant's employés to be within the building. And defendant, on the trial, introduced in evidence the fact that Hattie Jarrard, on a former trial of the case, testified, in effect, that as she approached the door of the building in which the machinery was situated, just before the injury, one of defendant's employés invited her to come in and see the machinery. This evidence was sufficient to go to the jury upon the issue presented by the pleadings, as to whether the child was invited into the mill. The fact that children had been previously allowed to go there was a circumstance, taken in connection with the other evidence, to show that she was induced to go into the building by the agent of the company, though the teacher had previously warned her not to go there. It was for the jury to say whether the conversation with the defendant's servant as she approached the door, added to the fact that the children had been accustomed to go into the place, did not induce her to enter. If it be conceded that a previous warning to her not to go to the building would, as a matter of law, destroy the effect of the previous custom of the children to go there, we think it clear that such would not be the case unless the child was informed that the warning by the teacher was at the instance of the defendant. In the absence of such information, she...