J. I. Case Threshing Mach. Co. v. Burns

• Decision Date: 04 March 1905
• Citation: 86 S.W. 65
• Parties: J. I. CASE THRESHING MACH. CO. v. BURNS et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 65

86 S.W. 65

J. I. CASE THRESHING MACH. CO. v. BURNS et al.^*

Court of Civil Appeals of Texas.

March 4, 1905.

On Rehearing, April 1, 1905.

Appeal from District Court, Dallas County; Richard Morgan, Judge.

Action by Mrs. M. S. Burns, individually and as next friend of Jarrell Burns, against the J. I. Case Threshing Machine Company. From a judgment for plaintiffs, defendant appeals. Reversed.

Wendell Spence, for appellant. Carden, Senter & Carden, for appellees.

RAINEY, C. J.

This is a suit for damages brought by Mrs. M. S. Burns, for herself and as next friend for her minor son, Jarrell Burns, against the appellant. Upon trial, verdict and judgment were rendered for Mrs. Burns, from which this appeal is prosecuted.

On September 24, 1903, appellant was moving two or more rigs of machinery, consisting of traction engines, thresher, etc., along the public street in Dallas, from its downtown warehouse to the fair grounds, in the eastern part of the city. The machinery was attractive to children. Jarrell Burns, seven years of age, and other children of various ages, followed the machinery as it moved through the streets, and, when nearing the fair grounds, Jarrell Burns, while attempting to pass between part of the machinery, was run over and injured. Jarrell Burns, as well as all the boys, had been driven away from the machinery, and repeatedly warned to stay away therefrom, etc.

The court was requested to instruct the jury as follows, which instruction was refused, and this is assigned as error, viz.: "The uncontradicted evidence in this case shows that the defendant, through its agents and employés in charge of its machinery while same was being moved through the streets of the city of Dallas, at the time of the happening of the accident complained of by plaintiff, not only did not invite the plaintiff Jarrell Burns to go upon or about said machinery, but said evidence shows that defendant, through its said agents and employés, commanded and directed the plaintiff Jarrell Burns not to go or be about said machinery. Therefore, unless some one of the defendant's agents or employés in charge of moving said machinery knew before the accident complained of that Jarrell Burns had placed himself in a position of peril or danger, and had such knowledge a sufficient length of time before the accident to have prevented the accident and injuries to Jarrell Burns by the use of such a degree of care as they might reasonably have used under the circumstances, then you will return your verdict for the defendant." This charge, or one of similar import, should have been given. The appellant had the right to move the machinery along the streets of Dallas, and it seems from the evidence that the employés of appellant gave the boys warning and ran them away from the machinery repeatedly. If their testimony is to be believed—and it does not seem to be contradicted—they were, when not paying attention to operating the machinery in its transportation, continually driving the boys away, and warning them to desist from hanging on the machinery or being in close proximity thereto. Jarrell Burns' running in between the machinery seems to have been sudden, and he was not seen by any of the employés of appellant. The principles governing this case are the same as announced by our Supreme Court in Construction Company v. Bostick, 83 S. W. 12. Judge Gaines, in delivering the opinion in that case, said: "The defendant did not owe the duty of guarding its premises and machinery against trespassers, even though they may have been children of very immature discretion. We think, however, that in analogy, at least, to the doctrine of discovered peril, when an employé in charge of the gins saw a child of tender years intruding into a place of danger, or in such close proximity to the machinery that he was likely to so intrude, it became his duty to take steps for its protection. But we are of opinion that this duty would have been performed by warning the child of its danger, and by removing it from the room in which the machinery was in operation to a place of safety. It was then no more the duty of the company to place a watchman over it than it was its duty in the first instance to have some one on guard for the protection of such trespassers."

The judgment will be reversed, and cause remanded.

Reversed and remanded.

On Rehearing.

The appellees, in their motion for a rehearing, admit that no further evidence...