Missouri, K. & T. Ry. Co. of Texas v. Edwards

• Citation: 32 S.W. 815
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. EDWARDS.
• Decision Date: 28 September 1895
• Court: Court of Appeals of Texas

32 S.W. 815

MISSOURI, K. & T. RY. CO. OF TEXAS v. EDWARDS.

Court of Civil Appeals of Texas.

September 28, 1895.

Appeal from district court, Grayson county; Don A. Bliss, Judge.

Action by Easter A. Edwards against the Missouri, Kansas & Texas Railway Company of Texas for loss of service of a minor child, through injuries caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Reversed.

Foster & Wilkinson, for appellant. E. J. Smith and Wolfe & Hare, for appellee.

RAINEY, J.

This is an action brought by Easter A. Edwards against the Missouri, Kansas & Texas Railway Company of Texas. Plaintiff sought to recover for the loss of services of her child, Mollie Edwards, by reason of personal injuries received by said Mollie by reason of the falling of a pile of lumber or bridge material in the bridge and building yards of the defendant in the city of Denison. It is alleged that the lumber was loosely and insecurely piled, making it dangerous to children who might climb thereon, for the purpose of engaging in childish sport; that this was well known to the defendant, as was the fact that it was an attractive place for children of tender years, and that children in the neighborhood had been in the habit of congregating in the yards for the purpose of playing, and that the watchman of defendant, instead of excluding them, had been in the habit of permitting them to do so, though cautioned by plaintiff not to permit it; that her child, being of tender years, while playing with other children in said yard, without her knowledge, and in full view of the watchman in charge of the yards, in attempting to climb upon the pile of lumber, started several heavy beams in motion, and caused them to fall upon and mash her foot, whereby plaintiff had been damaged by the expense of nursing, medical attention, and by the loss of the services of her child. Defendant pleaded a general denial, and, specially, that the injured party was a trespasser upon the grounds after having been frequently ordered away therefrom, and, on the occasion of her injury, had just been sent out of the premises by the watchman in charge, and immediately thereafter, without his knowledge or that of defendant, entered again upon the premises, and, in endeavoring to climb upon the pile of lumber, pulled down upon herself one of the pieces thereof, whereby she received the injury, without any fault on defendant's part. Defendant also pleaded contributory negligence on the part of plaintiff in failing to exercise proper care to keep her child away from the premises in question. A verdict, and judgment thereon, were rendered in favor of plaintiff, from which this appeal is taken.

It was shown by the evidence that the defendant's bridge and building department, in which were kept ties, bridge material, etc., was situated near the residence of the plaintiff, there being only an alley between; that plaintiff's children, together with others in the neighborhood, were in the habit of playing in the yard where this material was kept; that the watchman and other employés of the railway company whenever the children were observed playing in the yard, would order them out, and, on the evening that the plaintiff's child was hurt, the watchman saw children playing in the yard, and ordered them out. The children went out, but, when the watchman went to another part of the yard, they re-entered, and climbed upon a pile of ties, pulling them down, one falling on the child of plaintiff, and mashing its foot. The mother of the child (plaintiff) knew that her child had been in the habit of playing in the yard, frequently warned it not to do so, and on two or three occasions had punished it for going in the yard and playing upon the lumber. There is no question about the child's having been injured in the manner as here stated.

Several assignments of error are urged against the charge of the court. The first, which we deem it necessary to notice, is as follows: "The court erred in giving to the jury the ninth instruction contained in its charge, the same being not the law as applied to the facts, and being especially erroneous in the following particulars: That said instruction, as applied to the facts, held defendant bound to more than ordinary care, and liable for a failure to so pile the lumber or bridge materials on its private property as to make them absolutely safe, and not in any respect dangerous for children to play on or about, although every effort might have been made to keep children away from...