Ollis v. Houston, E. & W. T. Ry. Co.

• Decision Date: 13 March 1903
• Citation: 73 S.W. 30
• Parties: OLLIS v. HOUSTON, E. & W. T. RY. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

73 S.W. 30

OLLIS v. HOUSTON, E. & W. T. RY. CO.^*

Court of Civil Appeals of Texas.

March 13, 1903.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Action by George C. Ollis, a minor, by his next friend, against the Houston, East & West Texas Railway Company. A demurrer to the petition was sustained, and a judgment for defendant was rendered. Plaintiff appeals. Reversed.

Jno. G. Tod and Ewing & Ring, for appellant. Baker, Botts, Baker & Lovett and J. S. McEachin, for appellee.

GARRETT, C. J.

This action was brought in the district court of Harris county for the Eleventh Judicial District, by George C. Ollis, a minor, by his father, Tolmin T. Ollis, as next friend, to recover damages of the Houston, East & West Texas Railway Company for personal injuries. A general demurrer to the petition was sustained by the trial court, and judgment was rendered in favor of the defendant, from which the plaintiff has appealed.

It appeared from the petition that the plaintiff was a minor, six years of age, and that while he was at play with other children upon the cars of the defendant in its switchyard at Houston the defendant caused other cars to be run into the yard and struck a car upon which the plaintiff was playing, and plaintiff was thrown off and received injuries which resulted in the loss of his right arm. It was alleged that at the time of the casualty, and for several months before the happening thereof, the defendant had kept cars, both loaded and empty, on its switch tracks and right of way. The petition also alleged: "That said right of way and premises, at the time of the casualty, and during the period aforesaid, were in a thickly settled and populous neighborhood, practically a part of the city, though out of its limits, and in such neighborhood there were numerous children; and during the period aforesaid the children, generally, of said neighborhood, habitually, constantly, and notoriously made their playground on said right of way and premises, and in, about, and on said cars so left standing thereon as aforesaid, without objection from said defendant or its agents or employés in that behalf, and with its and their knowledge and acquiescence, as also with its and their permission, and under circumstances reasonably justifying and calculated to induce such children in believing, and acting on the belief, that their presence on such premises aforesaid was permitted by defendant, as well as its agents and servants in that behalf." The petition showed by proper allegations that, if the defendant owed the plaintiff the duty of lookout to discover his presence, the cars were run against and struck under such circumstances as to show negligence on the part of the defendant's employés.

This case does not come within the principle of the turntable cases, by which there is an implied invitation by the defendant to the injured person to come upon the premises, nor does it come strictly within the rule showing that the plaintiff was upon the premises of the defendant as a licensee. But, taking the allegations in the petition as true, the switchyard was commonly used by the children of the neighborhood as a playground, and they were constantly in and about the cars standing on the tracks, without objection from the defendant or its agents or employés, and with their knowledge and acquiescence. Such being the case, it was the duty of the employés of the defendant to use ordinary care to discover the presence of the children, and to avoid inflicting injury upon them. G., C. & S. F. Ry. Co. v. Smith, 87 Tex. 348, 28 S. W. 520; Railway v. Crosnoe, 72 Tex. 79, 10 S. W. 342; St. Louis & S. W. Ry. Co. v. Shifflet (Tex. Civ. App.) 56 S. W. 698; St. Louis S. W. Ry. Co. v. Shiflet, 94 Tex. 131, 58 S. W. 945; Railway v. Watkins, 88 Tex. 20, 29 S. W. 232.

The facts alleged in the petition show that the plaintiff cannot be...