Gulf Production Co. v. Quisenberry

• Court: Texas Supreme Court
• Writing for the Court: Ryan
• Citation: Gulf Production Co. v. Quisenberry, 97 S.W.2d 166, 128 Tex. 347 (Tex. 1936)
• Decision Date: 28 October 1936
• Docket Number: No. 1629-6660.,1629-6660.
• Parties: GULF PRODUCTION CO. v. QUISENBERRY.

Page 166

97 S.W.2d 166

GULF PRODUCTION CO. v. QUISENBERRY.

No. 1629-6660.

Commission of Appeals of Texas, Section B.

October 28, 1936.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Action by Chester Quisenberry against the Gulf Production Company. To review a judgment of the Court of Civil Appeals [63 S.W.(2d) 248], reversing a judgment based on an instructed verdict for defendant, the defendant brings error.

Judgment of Court of Civil Appeals affirmed, and cause remanded to trial court.

John E. Green, Jr., of Houston, P. O. Settle and William L. Wise, both of Fort Worth, and Harrell & Allison, of Breckenridge, for plaintiff in error.

E. W. Bounds, of Fort Worth, and Frank S. Roberts, of Breckenridge, for defendant in error.

RYAN, Commissioner.

The Court of Civil Appeals at Eastland reversed a judgment of the district court of Stephens county, based upon an instructed verdict for defendant Gulf Production Company, and remanded the cause upon the theory that the evidence raised material issues of fact which should have been submitted to the jury. 63 S.W.(2d) 248, 249.

Writ of error was granted on an alleged conflict of decisions stated in the application therefor.

This suit was brought by Chester Quisenberry, a minor, through his father L. E. Quisenberry, as next friend, against the Gulf Production Company, for damages sustained by the minor while playing upon a frame insecurely placed on a tubing rack, which rack and frame, it was alleged, constituted together an inherently dangerous instrumentality attractive to children of immature years.

We quote statement of the case made by the Court of Civil Appeals, viz.:

"The accident occurred in June, 1927, at or near a camp maintained by appellee for its employees on the Ward lease in Stephens county. Appellant's father went to work for the appellee in 1920, and continued as its employee until in July, 1926. On August 23, 1926, he was re-employed by the company, and, together with his family, moved into a house located in what is commonly called an oil camp. There were several houses in this group situated near each other, with no fences separating them. In the vicinity of these houses, and about 100 yards from the house occupied by the Quisenberrys at the time of the accident, there was a rack about 3½ feet high and 14 feet long, used primarily as a place on which to keep tubing and rods, upon which rack was stored a frame used on trucks and trailers for hauling tanks of oil. This frame was about the width of a truck bed and was longer than the rack. It was constructed of 2×6 lumber and iron rods and strips. Its estimated weight was from 600 to 800 pounds. It was not resting securely upon the rack, but was placed diagonally across it in such manner that it would rock when a child got upon it. On the day of the accident, Chester, who was then five years old, and his cousin, Hoy Brown, six or seven years old, climbed upon this rack and frame to play. They got on the frame and began to rock it, and, as it overturned, Chester struck the ground first, and the frame fell upon his head, inflicting the injuries for which damages are sought. There was no inclosure about any of the premises, except the landowner's pasture fence, which inclosed the large tract of land on which the camp was located. There is some conflict in the evidence as to the immediate occasion of the boys' being at this rack. L. E. Quisenberry, the father, testified that a short time before the accident he discovered the boys playing in an old cellar some distance beyond the rack from the house, and directed them to go back home. He went on about his work as a pumper on a well a mile or more distant, and did not observe the boys to obey his command. Q. P. Quisenberry, an older brother of Chester's, testified that his mother sent him to the site of this old cellar to tell the boys to come to supper, and that, in going home, the boys, who were about 100 yards ahead of him, climbed upon this rack, and the accident occurred just as he arrived on the spot. Chester did not testify, but the boy who was with him, Hoy Brown, denied that the father had commanded them to leave the cellar, denied that Q. P. found them there and told them to come to supper, said that it was not supper time, and they were not on their way to supper, but that they were out searching for a good place to play, and found this rack and frame, which was convenient to climb upon, and got on it to play. In so far as this evidence conflicts, we must consider it in the light most favorable to appellant.

"There was evidence that children had played around this frame, with the knowledge of the `gang-pusher,' who was in charge of the premises, prior to the time of this accident, but no evidence that any children had theretofore played on this frame or rack. Appellant's father knew of the unsafe position of this frame upon the rack, and notified the gang pusher of the fact more than once. The frame was so heavy that he himself could not move it over on the rack and make it secure. It was his duty, when he discovered an unsafe condition which he himself could not remedy, to notify the gang pusher. A short time before the accident, Quisenberry moved his family from one of the houses farther away from the rack to the house nearest it, and within about 100 yards thereof."

In addition to the above statement, attention may be called to...