Flippen-Prather Realty Co. v. Mather

• Decision Date: 02 November 1918
• Docket Number: (No. 7995.)
• Parties: FLIPPEN-PRATHER REALTY CO. v. MATHER.
• Court: Texas Court of Appeals

207 S.W. 121

FLIPPEN-PRATHER REALTY CO. v. MATHER.

(No. 7995.)

Court of Civil Appeals of Texas. Dallas.

November 2, 1918.

Rehearing Denied December 14, 1918.

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Suit by V. K. Mather, for himself and wife, against the Flippen-Prather Realty Company. Judgment for plaintiff, motion for new trial overruled, and defendant appeals. Affirmed.

J. J. Eckford, of Dallas, for appellant.

Cockrell, Gray, McBride & O'Donnell, of Dallas, for appellee.

TALBOT, J.

V. K. Mather, for himself and wife, Nannie W. Mather, brought this suit to recover of appellant damages on account of the death of their son, Vernon Mather, who, at the date or his death, was between seven and eight years of age, which occurred April 24, 1916, by reason of the said Vernon Mather falling into a well situated on vacant property of appellant, known as block 65 of the Fourth installment of Highland Park, an addition to the city of Dallas, and drowning.

Appellee alleges: That said block 65 was subdivided into lots which were being offered by appellant for sale to the public for residence purposes; that said block, at the time Vernon Mather lost his life and for seven years prior thereto, was surrounded by opened, developed, and paved streets, being Beverly drive on the north, Byron avenue on the east, Princeton avenue on the south, and St. John's drive on the west. That on April 24, 1916, and for some time prior thereto, appellee resided with his family in block 84 of said Fourth installment, his residence being situated two blocks almost directly south from said block 65. That immediately north of block 65, and but one block therefrom, was situated the public schoolhouse, which was at the time of the accident in question and for several years prior thereto in use and patronized by the citizens of Highland Park, a suburb of the city of Dallas, having a very considerable population. That appellee's little boy, Vernon Mather, was among the children attending said school. That on the 24th day of April, 1916, and for years prior thereto, there was situated on block 65, and owned by appellant, an old, open, unused, and abandoned well, the presence of which was known to appellant. That there was no fence surrounding said block, and no safeguard or protection whatsoever around said well to prevent the egress thereto of small children. That the well was on the 24th day of April, 1916, more than 14 feet deep. That immediately surrounding the mouth of the well was a circular depression slightly lower than the surrounding surface of the ground, and on such depression small children attending school were accustomed to, and had been accustomed for a great while to, play. That said well was especially and unusually attractive to children, and actually did attract children, and particularly the small children attending the school a short distance away, who used the depression around the well as a "speedway," as they called it, chasing one another around it. That children were attracted by the water therein. That not only so, but that said block 65 on which the abandoned well was situated was especially and unusually attractive to children, as a great many flowers were growing and had been growing thereon, and small children, and particularly those attending school, were accustomed daily to frequent said block and gather flowers. That said block, being directly within the path of the children attending the school just north of it, was daily passed over and used by them in going to and returning from school, and in so passing over said block they were accustomed, and had been for a long time, to pass alongside said well. That appellant, knowing these facts, used no diligence or care to guard against the calamity to small children of falling into said well. That the location, surroundings, and condition of the premises and the condition in which said well was maintained, being especially and unusually attractive to children, constituted an invitation from appellant to children to enter upon said premises and to play around and about said well. That appellee's child, Vernon Mather, was among those accustomed to play in and around the well and to gather flowers on said block 65. That on April 24, 1916, said Vernon Mather in company with other small children attending said school, on account of the unusual attraction of said premises and particularly of said well, and being attracted thereby, went upon said vacant block 65 for the purpose of playing around the well, and in so playing, and in some manner unknown to appellee, Vernon fell into the well and was drowned. That the death of the said child was the result of the inexcusable and wanton negligence of appellant. That neither appellee nor his wife had any knowledge of the existence of the well until after the death of their child. Appellee further alleged that Vernon Mather was a robust, healthy, well-developed boy, strong physically, bright and quick mentally and a precocious and promising child, and that appellee and his wife had each been damaged by his death in the sum of $10,000.

Appellant answered by general and special demurrers, general denial, and plea of contributory negligence on the part of Vernon Mather. It also specially denied that children played on said block, or that it was attractive, but alleged that it was rough, vacant property covered with weeds and outside any city, and paved sidewalks had been provided for patrons of the school, and there was no necessity to use this block for any purpose; that the well in question was on the property when acquired by appellant, and this and other wells on its property were filled up by appellant; and that the fact that this well did not remain filled up to its top at the time of said accident was unknown to appellant.

The case was submitted to a jury upon special issues, and, in response to the issues submitted, the jury found that the well in question was especially and unusually attractive to children such as Vernon Mather, and dangerous to them; that Vernon Mather was attracted by it, and as a result of such attraction was caused to lose his life; that appellant was guilty of negligence in permitting the well to be upon the premises in a condition especially and unusually attractive and dangerous to children; that the sum of $10,000 paid in cash now would reasonably compensate appellee and his wife for having been deprived of the earnings and services of their child, Vernon Mather, during his minority, and of the pecuniary benefits that they might reasonably have expected would be rendered to them by said Vernon after he should have reached his majority, etc. In response to questions propounded at the request of the appellant, the jury further found that Vernon Mather knew of the existence of the well prior to the time he visited it and was drowned; that the "natural surroundings" caused Vernon Mather to visit the well at the time he was drowned; that appellant or its officers knew at the time of the accident, or by the exercise of ordinary care would have known, that children played around or about the well prior to the accident to Vernon Mather; that Vernon Mather exercised ordinary care and prudence in playing at and about the well in the way he did at the time he was drowned; and that appellant did not exercise ordinary care to prevent said well from being dangerous.

Appellant's motion for judgment, notwithstanding the verdict of the jury, was overruled, and judgment rendered in favor of the appellee for $10,000. Appellant filed a motion for a new trial, which being overruled, it appealed.

The contention of the appellant made under its 50 assignments of error may be summed up as follows: First, the appellee having failed to allege that the abandoned well in which appellee's son was drowned was so near to a public highway that a person using the highway would be injured thereby, or that the child was there on business with appellant or at its invitation, but it affirmatively appearing from the allegations of appellee's petition that the child was a trespasser or a mere licensee, fails to show a cause of action, and the court erred in overruling appellant's exceptions to the petition; second, the undisputed evidence showing that Vernon Mather, the son of appellee, at the time he was drowned in the well was upon appellant's property without invitation of appellant, and was not using or attempting to use the public highway, but was knowingly upon the private property of appellant, the well in which he was drowned not being substantially near the public highway, and said property being vacant property of the general character of like property in that vicinity, and appellant and its agents not knowing the actual condition of the well at the time of the accident, nor that persons used these premises for playing or for any other purpose, and the injury received by appellee's son not having been wantonly, willfully, or knowingly inflicted upon him, the court erred in not setting aside the verdict and judgment rendered against appellant; third, under the undisputed evidence, the court should have given appellant's special charge directing the jury to return a verdict for appellant; fourth, the court erred in overruling appellant's objections to the submission of the issues as to whether or not the well in question was especially and unusually attractive to small children such as Vernon Mather and was Vernon Mather attracted by it, because there was no evidence authorizing the submission of such issues; fifth, the court erred in submitting the issue, did appellant or its officers know at the time of the accident, or by the exercise of ordinary care would have known, that children played around or about the well in question prior to the time Vernon Mather was drowned, because the owner of vacant property upon which is a well not near a public highway does not owe to a person upon such...