Houston & T. C. R'Y Co. v. Simpson

• Decision Date: 29 June 1883
• Docket Number: Case No. 4544.
• Court: Texas Supreme Court
• Parties: HOUSTON & T. C. R'Y CO. v. S. P. SIMPSON.

60 Tex. 103

HOUSTON & T. C. R'Y CO.

v.S. P. SIMPSON.

Case No. 4544.

Supreme Court of Texas.

Jun. 29, 1883.

ERROR from Grayson. Tried below before the Hon. Joseph Bledsoe.

Suit brought by S. P. Simpson, a minor, by his next friend, John L. Simpson, against the H. & T. C. R'y Co., to recover damages for injuries received by S. P. Simpson, on the 12th day of October, 1878, in having his right leg caught and crushed in a turn-table located at Denison, in defendant's yard at that place, and being defendant's property. It was alleged that the turn-table was located in a populous city; that it was unprovided with any means of fastening when not in use; that it was not kept fastened; that it was a dangerous machine, calculated to entice children to play on it, and that children did resort there and play on it. That plaintiff S. P. Simpson, actuated by desire for sport, and not knowing of any danger, and too young, and of consequence too indiscreet, to consider of the danger, but solely intent upon amusement, while being on the table when revolving, had his right leg caught and injured about the knee, inflicting a painful, serious and permanent injury.

Answer containing a general demurrer, general denial, and special answer alleging that the turn-table complained of was situated in defendant's yard at Denison, on its own premises, entirely away from any public street, out of and away from public view, and in a secluded, private, and, except by defendant's employees, unfrequented spot.

That there were no settlements, churches, school-houses or places of public resort near it; that it is separated from its passenger depot building by its coal bins, transfer warehouse, sheds and numerous sidings, constantly filled with cars, entirely obscuring it from public view.

That the turn-table, being situated at the northern terminus of defendant's line, was in constant use by it; that plaintiff S. P. Simpson was at least twelve years of age, and of average intelligence, and had lived for many years near a railway; that his parents had forbidden him from going about the railway on account of the dangers to which he might be exposed,--all of which he understood; that plaintiff's mother permitted him to go, on this occasion, to the compress on the M., K. & T. Railway, and that her acts in the premises, and plaintiff's own acts, contributed to, and were the sole cause of, the injuries complained of. That plaintiff was warned by defendant's employees not to play on the table.

Judgment for plaintiff, and against defendant, in the sum of $3,500.

The fourth instruction asked by appellant was as follows:

“If you believe, from the evidence, that defendant's turn-table, by which the accident occurred, is situated at Denison, at the end of its line, and is in constant use, daily and nightly, in turning its cars, and was not left alone by defendant's employees at the time of the accident, but that it had just been used in turning an engine, and that the engine had just been moved off the table when plaintiff began to move it, and against the warning of the defendant's employees, then it is not negligence in the defendant that its turntable was not fastened at the time of the accident, and plaintiff cannot recover.”

R. De Armand, for plaintiff in error.

R. C. Foster and Throckmorton, Brown & Bryant, for defendant in error.

STAYTON, ASSOCIATE JUSTICE.

After the court had instructed the jury as to the degree of care requisite in a child, the following instruction was given:

“If you believe, from the evidence, that the plaintiff, S. P. Simpson, had intelligence enough to know and appreciate the peril of getting on the defendant's turn-table, in the manner the evidence shows he did; or if you believe he was warned by defendant's employee not to get on said table, and that it was dangerous to do so, and said Simpson understood and appreciated such warning, but did nevertheless get on said turn-table, and was thereby the direct cause of his injury, you will find for defendant.”

This charge is assigned as error. It certainly was not erroneous.

After which the...