Freeman v. Garcia
| Decision Date | 30 June 1909 |
| Citation | 121 S.W. 886 |
| Parties | FREEMAN v. GARCIA. |
| Court | Texas Court of Appeals |
Appeal from District Court, Bexar County; J. L. Camp, Judge.
Action by Luz Garcia, by next friend, against T. J. Freeman, receiver. Judgment for plaintiff, and defendant appeals. Reversed and rendered.
King & Morris and Hicks & Hicks, for appellant. Seth S. Searcy, for appellee.
The appellee sued, alleging that plaintiff, a minor 11 years of age, climbed upon and stationed himself upon the running board of defendant's switch engine which was operating back and forth in what is known as the "stockyards" of defendant, and that he slipped and fell from the running board, and the wheels ran over his right leg, requiring amputation thereof above the knee, and causing him certain other injuries, all serious and permanent. It was alleged that defendant's servants permitted plaintiff to ride on said running board; that plaintiff was young, inexperienced and unaware of the danger; that he had been doing the same thing before, with the knowledge of said servant, but had not been warned of the danger; that said stockyards are located in a thickly settled portion of San Antonio, and are unprotected by gates or lookout; that children living in the neighborhood were in the habit of riding upon the cars and engines at that place, and that defendant and its servants knew this fact, but took no steps to prevent it; that on the date alleged plaintiff stationed himself upon the running board or step of the engine in full view of, and with the knowledge of, defendant's servants in charge of the engine, which was being operated back and forth as aforesaid, and while so riding plaintiff fell therefrom and received his injury. The petition alleged that plaintiff was injured through the negligence of defendant in this: "That no notice was given plaintiff of the perilous position he occupied, or of the danger he was in, in being upon and riding on said step or running board, and plaintiff was not warned of the danger he was in, in being upon the running board or step of said engine, although the defendant, its servants, and employés knew of plaintiff's whereabouts on said engine, or by the exercise of reasonable diligence could have known of his whereabouts and of the danger he was in, and that this negligence was the direct and proximate cause of plaintiff's injuries." Appellant answered by general and special exceptions, by general denial, and special answer: (a) That appellee was riding, or attempting to ride, on the cars or engine without the knowledge or consent of appellant, and while so doing, without any negligence upon the part of appellant, fell therefrom and was injured; that appellee was a trespasser and guilty of contributory negligence in riding or attempting to ride on said cars or engine. (b) Appellant further alleged that appellee was riding, or attempting to ride, upon said engine or cars while in motion in violation of section 18, c. 22, of the Revised Criminal Ordinances of the city of San Antonio, making it "unlawful for any person not a passenger thereon to get on or cling to any street car or other railroad car when in motion in the city of San Antonio," and that he was so doing without the knowledge of appellant or its employés, and was thereby guilty of contributory negligence. Appellant further alleged that appellee was injured while riding, or attempting to ride, on a freight train in the yards of appellant in the city of San Antonio without the knowledge and consent of appellant or its employés and contrary to the criminal statutes of the state of Texas, and that this was the proximate cause of his injuries, and that for said reasons he ought not recover. Plaintiff obtained a judgment for $3,000.
We shall first consider the third assignment of error, which complains of the charge which submitted the case upon the theory of whether or not those in charge of the engine knew that the minor was riding upon the running board of the switch engine, and which charged the jury that if they found that said employés knew the fact, and that plaintiff was a child of tender years, and did not know and appreciate the danger, if any, in riding upon said running board, and that said employés permitted him to be and ride thereon, and in so doing were guilty of negligence, and such negligence was the direct cause of plaintiff's injury, to find for plaintiff.
Three propositions are relied upon in connection with this assignment: (1) That where the sole ground of negligence is the failure to notify appellee of his perilous position, and to warn him of the danger he was in, a charge allowing a recovery in case the jury find that defendant's employés permitted appellee to...
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