Dublin Cotton Oil Co. v. Jarrard

Citation40 S.W. 531
PartiesDUBLIN COTTON OIL CO. v. JARRARD et al.<SMALL><SUP>1</SUP></SMALL>
Decision Date03 April 1897
CourtCourt of Appeals of Texas

Appeal from district court, Erath county; J. S. Straughan, Judge.

Two actions consolidated and tried together, —one by Hattie Jarrard, by her mother and next friend, Mary A. Dewitt, against the Dublin Cotton Oil Company; and the other by Mary A. Dewitt against the same defendant. From judgments in favor of plaintiffs, defendant appeals. Affirmed.

Lindsey & Goodson, for appellant. Ball & Tempel and Pruit & Smith, for appellees.

HUNTER, J.

This appeal is from a judgment in two cases which were consolidated in the district court,—one brought by Hattie Jarrard, by her mother and next friend, Mary A. Dewitt; and the other brought by Mary A. Dewitt,—both for damages caused by negligently inviting, allowing, and permitting the said Hattie, a seven year old girl, to enter its buildings, where dangerous machinery was being operated, and by leaving the doors of its buildings open, whereby children were permitted to enter, and to wander around and about said machinery; and by reason whereof the said Hattie was injured, by having her foot cut in a cotton seed conveyor, which was negligently left open at the top. Hattie's suit was to recover for permanent injury to herself, and the mother's suit to recover for loss of labor and services, and costs and expenses of nursing, and doctor's and drug bills in curing her The verdict and judgment in favor of Hattie was for $2,500, and that in favor of the mother was for $500. The defense was that the child had been informed of the danger of going into the building and about the machinery, and warned to keep away from it, and knew and understood the danger, and that the injury was caused by her own negligence and carelessness.

The evidence tends to establish that the appellant was the owner, and on March 30, 1893, was operating, cotton seed oil works at Dublin, Tex. The room in which Hattie was injured was 200 feet long by 120 feet wide, with large openings on the north and south ends and on the west side. These openings were left, and were used, for the purpose of driving in teams and wagons loaded with cotton seed, where the seed was unloaded on the floor, and shoveled into conveyors, which carried it to elevators, which in turn carried it to other machines in other parts of the building, to be cleaned, hulled, ground, and pressed. There were pulleys, shafts, belts, and wheels in this seed room, which made a buzzing, humming noise; and the conveyors were long troughs, running lengthways of the room, on the floor thereof, about 12 inches in diameter, open at the top, and about 2½ feet high. In these troughs were revolving shafts, with iron or steel flanges set in the shafts spirally, so that when the shafts revolved the seed was pushed along by the flanges from one end of the conveyor to the other. The noise of the machinery and the action of the conveyors made the room a novel and attractive place for children, and they frequently wandered in there to play, and to watch the machinery. The defendant had given orders to its employés to keep children out of the room, and had consulted with the principal of the Dublin city school, which was carried on within 150 yards of its seed room, and had caused him to instruct the school children to keep away from the building and machinery, and of the danger of being injured thereby, and had posted up plainly printed signs at the doors and entrances, such as, "No Admittance," "Keep Out," but the doors to the seed room were left open all through the day, in order to allow persons who brought seed to pass in and out with their wagons, without having to open and close the doors. Children had for some time prior to the injury to Hattie been in the habit of going into the room, and walking around, and looking at the machinery, and this was known to the officers and employés of the company; but, while the children had been warned to keep away, no steps had been taken to close the entrances against them, and they continued to come in and go out at their pleasure, and one child had been hurt in the conveyor prior to the time Hattie was injured. On the day Hattie was injured, she and two other little girls had passed into the seed room through the open doors, unobserved by any of the employés, and the three were walking around in the room about 20 feet from the conveyor in which Hattie was hurt, and in a part of the room where no machinery was running, when one of the employés who was shoveling seed into the conveyor first saw them. They seemed to be in no danger then, and he continued his work, and did not watch them, or order them out. In a few minutes—from three to five minutes—this employé again saw Hattie in the act of stepping across the conveyor, being up on a plank over the top of it, and as he looked the flanges of the conveyor seem to have caught her foot and thrown her in. He and two other employés ran to her, but she got her foot out, and they placed her in a wagon sheet and carried her to her home. Her foot was cut and injured so that she will limp and be a cripple to some extent all her life, and no surgical operation can restore it to its original usefulness. The verdict of $2,500 is not more than compensatory damages for the injury received. The conveyors worked better with the tops left open, as, when covered, they would frequently choke up. The president of the company, Mr. Connell, when he learned of the injury to the little girl, had her carried home, and employed a first-class physician to treat her wounded foot, and do all he could for her, and paid this physician's bill of $60, and her drug bill of $20, and did what he could to alleviate her suffering, and restore her foot as much as possible. There is evidence tending to show that the mother would not allow this physician to treat the child as he desired to, but this is contradicted by other evidence.

The evidence in the mother's case tends to establish that she had incurred indebtedness to the amount of about $200 for drugs, medicines, and doctor's bills in curing her child, and that she had nursed her for several months, and that the child's capacity and ability to labor was materially affected by the injury; and we cannot say that the damages of $500 awarded the mother by the jury in their verdict are excessive, though there is some evidence tending to show that her conduct may have...

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12 cases
  • Henry v. Mississippi Power & Light Co.
    • United States
    • Mississippi Supreme Court
    • March 27, 1933
    ... ... Barmore ... v. Vicksburg R. Co., 85 Miss. 426; Southern Cotton Oil ... Co. v. Anderson (Fla.), 86 So. 629 ... The ... owner of a dangerous machine ... Minn. 446, 185 N.W. 644; Union News Co. v. Freeborn, ... 111 Ohio St. 105, 144 N.E. 595; Dublin Cotton Oil Co. v ... Jarrard (Tex.), 40 S.W. 531, 42 S.W. 95; Barrett v ... So. Pac. Co., 91 ... ...
  • Lucas v. Hammond
    • United States
    • Mississippi Supreme Court
    • April 9, 1928
    ...premises in safe condition. But this is an exception to the rule which is as firmly established as the rule itself." In Dublin Cotton Oil Co. v. Jarrard, 40 S.W. 531, the court of appeals (affirmed by supreme court in 42 S.W. 959, 91 Texas 289) a school girl who had been warned by the teach......
  • Brzostowski v. Coca-Cola Bottling Co.
    • United States
    • New York Supreme Court — Appellate Division
    • April 11, 1962
    ...of the Carbone majority opinion in Mayer v. Temple Properties, supra, 307 N.Y. 559, 564, 122 N.E.2d 909, 912; Dublin Cotton Oil Co. v. Jarrard, Tex.Civ.App., 40 S.W. 531 aff'd. 91 Tex. 289, 42 S.W. The defendant makes much of the fact that there was a company rule forbidding unescorted chil......
  • Greer v. Damascus Lumber Co.
    • United States
    • North Carolina Supreme Court
    • December 20, 1912
    ... ... We ... considered a somewhat similar question in Ferrell v ... Cotton Mills, 157 N.C. 528, 73 S.E. 142, 37 L. R. A. (N ... S.) 64, and some of the principles discussed ... 17 S.E. 649; Construction Co. v. Bostick, 98 Tex ... 239, 83 S.W. 12; Oil Co. v. Jarrard (Tex. Civ. App.) ... 40 S.W. 531 ...          In ... Railway v. Abernathy, supra, the ... ...
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