Henwood v. Vanover

• Court: Texas Court of Appeals
• Writing for the Court: Dunklin
• Citation: Henwood v. Vanover, 126 S.W.2d 1036 (Tex. App. 1939)
• Decision Date: 17 March 1939
• Docket Number: No. 13879.,13879.
• Parties: HENWOOD v. VANOVER et al.

126 S.W.2d 1036

HENWOOD v. VANOVER et al.

No. 13879.

Court of Civil Appeals of Texas. Fort Worth.

March 17, 1939.

Rehearing Denied April 14, 1939.

Appeal from District Court, Cherokee County; C. E. Brazil, Judge.

Suit by L. J. Vanover, in behalf of Melvin Vanover, his minor son, and in his own behalf, against Berryman Henwood, trustee for the St. Louis Southwestern Railway Company of Texas, to recover for injuries sustained by the minor while the minor was riding on a push car belonging to the railway, when the car ran against a box. From a judgment awarding damages to the minor, but denying the plaintiff any relief in his own right, the defendant appeals.

Judgment in favor of the minor reversed and the cause remanded.

Ramey, Calhoun & Marsh, of Tyler, Norman, Stone & Norman, of Rusk, and G. L. Brelsford, of Tyler, for appellant.

J.J. Collins and Pitser H. Garrison, both of Lufkin, for appellees.

DUNKLIN, Chief Justice.

Melvin Vanover, a boy seven years of age, sustained an injury while riding on a push car belonging to the St. L. S. W. Ry. Co., in the town of Wells. The push car, approximately five feet long, 3½ feet wide and eighteen inches deep, was used in the railway yards for moving heavy articles and was operated over the rails, and when not in use, it was taken from the track and placed in a narrow run-way, running at right angles to the track, between two tool houses. The run-way was a part of the depot grounds and near a highway crossing. The boy lived with his parents near the depot. On the occasion of his injury, he and other children were using the push car for their amusement. It would be pushed by some while others rode on it. At the time of his injury, Melvin was riding in a sitting position with his legs over the front, while two other children pushed it, causing it to run down a decline and against a box, injuring one of Melvin's legs when it came in contact with the box.

This suit was brought in behalf of Melvin Vanover by his father, as next friend, who also sued in his own behalf for damages for the injury sustained by the minor. Judgment was rendered denying the father any relief, but awarding damages to the minor for $500. The defendant has appealed.

The facts related above were alleged in plaintiff's petition, with further allegations that the push car was unusually attractive and dangerous to children of tender age, who were incapable of appreciating the danger of using it for their amusement in the manner it was being used at the time of the injury; that children in that vicinity were in the habit of so using it prior to the accident, with the knowledge and consent of the defendant, and that defendant was guilty of actionable negligence in permitting such use; also in failing to lock or brace the car to prevent its movement. That Melvin Vanover was induced to play on the push car, by reason of its unusual attractiveness, and by reason of his tender age and lack of discretion he did not realize and appreciate the danger of so doing. There was no allegation of any latent defect in the construction of the car.

The issues of facts so tendered in plaintiff's petition were sustained by the verdict of the jury.

In a vast array of decisions throughout the country, the doctrine of liability of a property owner for injuries to children of tender age and immature discretion, resulting from attractive nuisances, is discussed.

In 30 Tex.Jur., pages 887 to 904, inclusive, many Texas decisions are noted and digested. See also 20 R.C.L., pp. 79 to 93; 45 C.J., p. 758 et seq. Also a collation of decisions in many states, in notes in 36 A.L.R., beginning on page 34.

Owing to the difference in the surrounding facts and circumstances, there seems to be a lack of harmony in some of those decisions.

San Antonio & A. P. Ry. Co. v. Morgan, 92 Tex. 98, 46 S.W. 28, 29, is one of the leading cases in this state on this subject. That was a suit by a mother for injuries to her 10-year old child, while playing on the railroad company's turntable. In the opinion, this was said:

"When, however, one enters upon the private property of another, his relation to that property and the owner thereof is not prima facie lawful, and therefore the law does not merely, by reason of his presence thereon, impose upon the owner any duty of care for his protection, although his wrongful presence does not relieve the owner of the general duty imposed upon him by law, as a member of society, not to intentionally injure another. In such a case, to state a cause of action against the owner for damages for injury inflicted upon him while thereon, the petition need only show a violation of such general duty, or, in other words, an intentional injury. Such intent can be established either by direct evidence or by circumstances showing such a reckless disregard of the lives and safety of others as to estop the owner from denying the intent. As illustrating, if not fully supporting, this principle, see Hydraulic Works Co. v. Orr, 83 Pa. 332, as explained in Gillespie v. McGowan, 100 Pa. 144 [45 Am.Rep. 365]; Schmidt v. Kansas City Dist. Co., 90 Mo. 284, 1 S.W. 865 [2 S.W. 417, 59 Am.Rep. 16]; Harriman v. Railway Co., 45 Ohio St. [11] 12, 12 N.E. 451 [4 Am.St.Rep. 507]; Dunham v. Pitkin, 53 Mich. [504] 507, 19 N.W. 166; Penso v. McCormick, , 25 N.E. 156 [9 L.R.A. 313, 21 Am.St.Rep. 211].

"If, however, the person entering upon the private property of another does so by invitation of the owner, a lawful relation is thereby established, and the law imposes upon the owner a duty of care for his safety, the degree of which we need not consider here. Such invitation may be express or implied. Where it is claimed to have been express it is a mere question of fact as to whether it was extended, and no legal difficulty exists. Where, however, it is sought to establish the fact of invitation from circumstances, the greatest difficulty arises in determining the character of circumstances from which the fact of invitation can be inferred. This is especially true where, as in the case before us, the invitation is sought to be established by estoppel against what was in all probability the true intent of the owner.

"It has been contended broadly that when an owner places or permits anything upon his property which is attractive to others, and one is thereby induced to go thereon, the invitation may be inferred as a fact by the court or jury. Now, since it is manifest that to some classes of persons, such as infants, the things ordinarily in existence and use throughout the country, such as rivers, creeks, ponds, wagons, axes, plows, woodpiles, haystacks, etc., are both attractive and dangerous, it is clear that the adoption of such a broad contention would be contrary to reason, lead to vexatious and oppressive litigation, and impose upon the owners such a burden of vigilance and care as to materially impair the value of property and seriously cripple the business interests of the country. Therefore it has been generally held that the invitation cannot be inferred in such cases. These cases rest upon the sound principle that, where the owner makes such use of his property as others ordinarily do throughout the country, there is not, in legal contemplation, any evidence from which a court or jury may find that he had invited the party injured thereon, though it be conceded that his property or something thereon was calculated to, and did, attract him. [Missouri, K. & T.] Railway v. Edwards, 90 Tex. 65, 36 S.W. 430 [32 L.R.A. 825]; Dobbins v. Railway Co. , 41 S.W. 62 [38 L.R.A. 573, 66 Am.St.Rep. 856] and cases cited therein; Peters v. Bowman, 115 Cal. 345, 47 P. 113, 598 [56 Am.St.Rep. 106]; Joske v. Irvine, , 44 S.W. 1059.

"Where, however, the owner maintains upon his premises something which, on account of its nature and surroundings, is especially and unusually calculated to attract, and does attract, another, the court or jury may infer that he so intended, and hence invited him. Where one exhibits on his own land, near where children are likely to be, pictures or unusually attractive machinery, etc., he can expect no other result than that it will appeal to the known instincts of a child of immature judgment and cause him to venture thereon, just as the dog was drawn into the baited trap by the scent of meat. Townsend v. Wathen, 9 East 277.

"Thus, we see (1) that a general duty is imposed upon an owner as a member of society not to intentionally injure any one; and, (2) that, if he invites one on his premises, an...