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

• Decision Date: 25 June 1896
• Citation: 36 S.W. 430
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. EDWARDS.
• Court: Texas Supreme Court

36 S.W. 430

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

Supreme Court of Texas.

June 25, 1896.

Error to court of civil appeals of Fifth supreme judicial district.

Action by Mollie Edwards, by her next friend, against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for

plaintiff, which was affirmed by the court of civil appeals (32 S. W. 815), and defendant brings error. Reversed.

Foster & Wilkinson, for plaintiff in error. E. J. Smith and Wolfe & Hare, for defendant in error.

GAINES, C. J.

Mollie Edwards, a minor suing by her next friend, brought this action against the Missouri, Kansas & Texas Railway Company of Texas to recover damages for personal injuries alleged to have been caused by the negligence of the defendant company. The negligence was alleged to consist in keeping a yard in which children were accustomed to play, and in piling a number of railroad bridge ties in such manner that they fell upon the plaintiff while playing upon them, and injured her. The facts disclosed by the testimony are as follows: The defendant company owned a lumber yard, which was used for the purpose of storing bridge material and other like lumber. It was fenced, except upon one side, along the company's railroad tracks. The plaintiff, at the time of the accident, was about eight years old, and lived, with her mother, just across an alley from the yard. Not being fenced along the track, the yard was easily accessible. It was shown that the plaintiff and other children were accustomed to resort there for the purpose of playing, but it was also shown that they were uniformly ordered out by the servants of the company. The parents of some of them were also warned to keep them away. It appeared, however, that, notwithstanding the persistent efforts of the servants of the company, the children would return. Just before the accident happened, the plaintiff was sent home by the watchman, and went out; but as soon as he was called away by other duties she returned. In attempting to climb upon the pile of bridge ties one of them fell down, and crushed her toes. There was evidence tending to show that the ties were insecurely stacked. The mother of the plaintiff testified in effect that she knew of the plaintiff's having visited the yard on former occasions and had punished her several times for it. There was a verdict and judgment for the plaintiff in the trial court, which judgment was affirmed in the court of civil appeals. 32 S. W. 815. The case comes to this court upon a petition for a writ of error, which has been granted.

The errors assigned in the court of civil appeals and which are insisted upon in this court are upon the charge of the court and upon the refusal to give certain special instructions requested in behalf of the defendant. But in the view we take of the case no critical examination of the charges is necessary. Two of the requested instructions were, in our opinion, statements of the law of the case, as applied to the facts in evidence, and should have been given. They were as follows: (1) "Defendant was under no obligation to keep watch over its premises in order to exclude children therefrom. If the watchman of defendant discovered plaintiff, with others, playing in the yard, shortly before the accident, and requested them to leave, and plaintiff thereupon withdrew from the premises, but thereafter returned, without the knowledge of defendant's watchman or person in charge of its property, for the purpose of playing in the yard, and while so doing was injured, without such watchman having knowledge of her being then present, and while playing there pulled down upon herself or caused to fall a tie or portion of a pile of ties upon which she was climbing, defendant would not be liable to plaintiff by reason of any injury so received." (2) "Defendant was under no obligation to plaintiff to keep its lumber yard in safe or proper condition for plaintiff to play thereon. The yards were its property, and it was entitled, as to plaintiff, to use them for piling lumber, and to pile the same in such form as it found convenient, with due regard to the safety of such persons only as might properly use the yards. It was under no obligations to so pile or place its bridge ties as to prevent injury by a child climbing upon them, or to so pile, fasten, or brace the same that the child could not, in trying to climb thereon, pull one or more of them down upon herself; nor can it be held negligent for failing to so pile, brace, or secure them, if the injured person was at the time thereon without its knowledge or invitation." Ordinarily, the owner of property is not bound to keep it in such condition as to protect trespassers upon it from danger. Liability may be incurred by making an excavation upon one's own land sufficiently near a street or highway that another may, in the exercise of reasonable care, fall into it, or by exposing dangerous machinery or appliances in or near some public place, whereby one without fault on his part may be injured. Especially in the latter case...