Lynch v. South Tex. Lumber Co.

• Decision Date: 16 June 1954
• Docket Number: No. 5021,5021
• Citation: 271 S.W.2d 456
• Parties: Robert W. LYNCH et ux., Appellants, v. SOUTH TEXAS LUMBER COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 456

271 S.W.2d 456

Robert W. LYNCH et ux., Appellants, v. SOUTH TEXAS LUMBER COMPANY, Appellee.

No. 5021.

Court of Civil Appeals of Texas, El Paso.

June 16, 1954.

Rehearing Denied July 14, 1954.

Snodgrass & Smith, San Angelo, for appellants.

Strasburger, Price, Kelton, Martin & Miller; W. M. Taylor, Jr., and Royal H. Brin, Jr., Dallas, Hart Johnson, Ft. Stocktion, for appellee.

McGILL, Justice.

This suit was brought by appellants as plaintiffs against appellee as defendant, to recover compensatory damages for the death of their minor son, Robert Stanley Lynch, who was between four and five years of age, under the provisions of Article 4671 et seq., of the Revised Civil Statutes, Vernon's Ann.Civ.St. art. 4671 et seq. Trial was to a jury, and on answers to special issues submitted the court rendered judgment that plaintiffs take nothing.

The defendant was operating a retail lumber yard. W. T. Buckner, the grandfather of the deceased minor, went to the yard for the purpose of buying lumber. He went into the office, placed his order and was then sent back by the manager into the lumber yard, where his pickup truck was parked, to have the lumber cut and loaded. He saw nothing about the premises that required him to warn the minor of any known danger. He did not notice any stacks of lumber which seemed likely to fall and injure anyone. Defendant's employees were filling the order by pulling out boards and sawing them into the required lengths. Buckner told the minor to get back out of the way of the saw and the child went around behind him and out of his vision and immediately thereafter the noise of failling lumber was heard. The child was not of Buckner's sight for a very short interval of time when the lumber in one of the bins fell upon him, causing his death shortly thereafter. The jury found negligence on the part of defendant in several respects. They failed to find (12) that plaintiffs failed to exercise ordinary care in permitting their son to go to the lumber yard at the time and on the occasion in question. They further found (14) that Buckner failed to look after the child on the occasion in question; (15) they did not find that Buckner failed to exercise ordinary care in faliling to look after the child; (17) they found that Buckner permitted the child to play around the stacks of lumber; (18) that Buckner failed to exercise ordinary care in permitting the child to play around the stacks of lumber; (20) that he failed to exercise ordinary care in not keeping the child from going into the bin in question; (21) that such failure proximately caused or contributed to cause the injury and death of the child; (22) that Buckner failed to keep a proper watch over the child at the time and on the occasion in question; (23) that such failure caused or proximately contributed to cause the injuries and death of the child; (24) that Buckner failed to keep the child where he could see and supervise his actions at the time and on the occasion in question; (25) the jury did not find that Buckner failed to use ordinary care in not keeping the child where he could see and supervise his actions; (27) that Buckner failed to properly look after the child at the time and on the occasion in question; (28) they failed to find that such failure was the sole proximate cause of the accident; (30) that $10,000 would compensate the plaintiffs for the pecuniary loss suffered by them as the result of the death of their son.

Appellants have presented five points on which they seek a reversal. Their second point is that the court erred in the submission of special...