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

• Decision Date: 19 May 1882
• Docket Number: Case No. 4474.
• Citation: 57 Tex. 126
• Parties: F. G. EVANSICH v. THE G., C. & S. F. R'y CO.
• Court: Texas Supreme Court

57 Tex. 126

F. G. EVANSICH

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

Case No. 4474.

Supreme Court of Texas.

May 19, 1882.

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

F. D. Jodon, for appellant.

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 v. 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; Loftus v. Union Ferry Co., 84 N. Y., 455.

STAYTON, ASSOCIATE JUSTICE.

This action was brought by F. G. Evansich, Sr., as next friend of his son, F. G. Evansich, Jr., a child seven years of age, to recover damages for an injury alleged to have been received by the son on the 18th day of April, 1880, on a turn-table owned by the railway company, which was alleged to be in a public place very near to a public street in the city of Brenham, unenclosed, unguarded, unlocked, and easily put in motion by children. The petition set out fully the manner in which the injury was received, the character of injury received by the child, and the negligence of the railway company.

The appellee answered by a general demurrer and by special demurrers; also by general denial and by special answers. The demurrers were sustained and the cause dismissed.

As special ground of demurrer it was urged that the father, as next friend, could not maintain the action for his minor son. This action having been instituted since the adoption of the Revised Statutes, the father could institute and maintain it. Abrahams v. Volbaum, 54 Tex., 227; Brooke v. Clark, Tex. Law Reporter, 205, affirmed at the present term of this court.

In addition to a general demurrer, there was a special demurrer, which was as follows: “The said petition is insufficient in law, because it appears from the allegations thereof that, if plaintiff has been injured or damaged, the same was caused wholly by his own contributory negligence and willful trespass upon the property of defendant.”

The petition in this cause is very full, and, tested by the principles set forth in many well considered cases by courts of high authority, must be considered as sufficient.

The same rule which applies to persons who from their age have discretion sufficient to protect themselves, in reference to contributory negligence, cannot be applied to infants of tender years; and in reference to them, the negligence of a party through whose want of care they receive injury will fix liability, notwithstanding the act of the infant may have been such as would defeat a recovery by an adult receiving an injury under the same circumstances.

In the case of Railroad Company v. Stout, 17 Wall., 660, the rule is thus stated: “It is well settled that the conduct of an infant of tender years is not to be judged by the same rules which govern that of an adult. While it is the general rule in regard to an adult, that, to entitle him to recover damages for an injury resulting from the fault or negligence of another, he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to its maturity and capacity only, and this is to be determined in each case by the circumstances of that case.” The...