Evansich v. G., C. & S. F. R'Y Co.

• Decision Date: 19 May 1882
• Docket Number: Case No. 4475.
• Citation: 57 Tex. 123
• Parties: F. G. EVANSICH, JR., BY NEXT FRIEND, v. THE G., C. & S. F. R'Y CO.
• Court: Texas Supreme Court

57 Tex. 123

F. G. EVANSICH, JR., BY NEXT FRIEND,

v.THE G., C. & S. F. R'Y CO.

Case No. 4475.

Supreme Court of Texas.

May 19, 1882.

APPEAL from Washington. Tried below before the Hon. I. B. McFarlane.

The opinion states the case.

F. G. Jodon, for appellant.

I. There is a cause of action set up in plaintiff's first amended original petition, and the general demurrer should not have been sustained. H. & T. C. R. R. v. Sympkins, S. C. Tex., 4 Tex. L. J., 566; Hamilton v. S. A. R. R. Co., S. C. Tex., 4 Tex. L. J., 533; Lynch v. Nurdin, 2 Thomp. Neg., 1140; Railroad v. Stout, 17 Wall., 657 [Turn-Table case]; Keefe v. Milwaukee & St. Paul R'y Co., 21 Minn., 207, reported also in 18 Am. Rep., 393 [Turn-Table case]; Kansas Cent. R'y Co. v. Fitzsimmons, 22 Kans., 686, also in 31 Am. Rep., 203, with note [Turn-Table case]; Koons v. St. Louis & Iron Mt. R. R., 65 Mo., 592 [Turn-Table case]; Robinson v. Cone, 22 Vt., 213, also in 2 Thomp. Neg., 1129.

II. That the injuries were caused by the joint negligence of the defendant and a stranger is no defense; and unless the person whose fault is relied upon as an excuse was subject to the direction of the plaintiff, or had him under control, the stranger's fault cannot be charged upon the plaintiff. The proximate cause of the injury was defendant's negligence in leaving a dangerous instrument exposed; and the fact that other children put it in motion will not bar a recovery. H. & T. C. R'y Co. v. Sympkins, S. C. Tex., 4 Tex. L. J., 566; Railroad Co. v. Stout, 17 Wall., 657; Shear. & Redf. on Neg., 2d ed., sec. 10, note 2; sec. 27, note 1; secs. 46, 594-596; 2 Thomp. Neg. [Lynch v. Nurdin], 1140; Id., 1129, Robinson v. Cone; Keefe v. Milwaukee & St. Paul R'y Co., 21 Minn., 207, also in 18 Am. Rep., 393;Kansas Cent. R'y Co. v. Fitzsimmons, 22 Kans., 686, also in 31 Am. Rep., 203, with note; Clark v. Chambers, 7 Cent. L. J., p. 11 [English High Court of Justice, Queen's Bench Div., April 15, 1878]; Lehigh Valley R. R. v. McKeen, 90 Pa. St., 122, also in 35 Am. Rep., 614.

Hume & Shepard, for appellee.--The court did not err in sustaining the demurrer, because it appeared from the petition that the turn-table was situated upon the property of defendant, and was at rest; that the boy was a trespasser to whom the defendant owed no duty; that he was hurt by reason of his own improper conduct, and not through any culpable act of defendant. McAlpin v. Powell, 70 N. Y., 126; Railroad Company v. Bell, 81 Ill., 76; Railroad Company v. Henigh, 26 or 27 Kans. (10 C. L. J., 208); Cauley v. Railroad Company (Sup. Ct. Pa., 1880), 11 Reporter, 67; Smith v. Hestonville R. Co., 92 Pa. St., 450; Morrissey v. East R. Co., 126 Mass., 377;Lyons v. Brookline, 119 Mass., 491;Tigh v. Lowell, Id., 472;Wright v. Malden R. Co., 4 Allen, 283;Callahan v. Bean, 9 Allen, 401;Victory v. Baker, 67 N. Y., 366;Hartfield v. Roper, 21 Wend., 615;Wood v. Ind. School Dist., 44 Iowa, 27; Honor v. Albrighton, 93 Pa. St., 475; Hughes v. McFie, 2 Hurl. & Colt., 744; Mangan & Atherton, L. R., 1 Exch., 238; S. C., 4 Hurl. & Colt., 388; Gautret v. Egerton, L. R., 2 C. P., 370; Stone v. Jackson, 32 Eng. L. & Eq., 349; Willsinson v. Fairre, 1 Hurl. & Colt., 633; Lygo v. Newbold, 24 Eng. L. & Eq., 507.

STAYTON, ASSOCIATE JUSTICE.

This action was brought by appellant against the appellee to recover actual damages for expenses incurred by him for medical bills, medicines, nursing, and loss of time during the confinement of his infant son, alleged to have been caused by injuries received by the child while playing upon a turn-table owned by the appellee, and situated in the city of Brenham, in a public place near a public street. The situation of the turn-table in reference to plaintiff's residence; its public position; its dangerous structure; that children were accustomed to play on the turn-table; that servants of appellee knew that fact; that it was unguarded, unenclosed, and in no way fastened; that without his consent or knowledge, and contrary to his orders, the child went to the turn-table and was there seriously injured while playing thereon with other children (the nature and character of the injury being given); that in consequence of the injury received by the child he was compelled to employ a physician, purchase medicines, spend time in nursing the child, and incur other expenses and suffer other losses (the expense of all of which was stated), were alleged.

Demurrers were filed to the petition, which in substance set up that the petition was insufficient, because it appeared therefrom that the turn-table was upon the premises of the appellee; that the child was a trespasser, and that he was hurt by his own improper act. The demurrers were sustained and the cause...