San Antonio & A. P. Ry. Co. v. Morgan

• Decision Date: 06 June 1898
• Citation: 46 S.W. 28
• Parties: SAN ANTONIO & A. P. RY. CO. v. MORGAN.
• Court: Texas Supreme Court

Page 28

46 S.W. 28

SAN ANTONIO & A. P. RY. CO. v. MORGAN.

Supreme Court of Texas.

June 6, 1898.

Error to court of civil appeals, First supreme judicial district.

Action by Nannie Morgan against the San Antonio & Aransas Pass Railway Company. From a judgment overruling a demurrer, defendant appealed to the court of civil appeals, where it was affirmed (45 S. W. 169), and defendant brings error. Reversed.

Stayton & Berry, for plaintiff in error. G. R. Scott & Bro., for defendant in error.

DENMAN, J.

This was a suit brought by Nannie Morgan, a widow, to recover damages for injuries inflicted upon Koss Morgan, her child, 10 years of age. Omitting the usual formal allegations, the petition alleged: "That on or about the 16th day of June, 1895, the defendant had and maintained near its main railroad track in the town of Alice, a place of about 2,500 inhabitants, in the county of Nueces, a large revolving platform, commonly known as and called a `turntable,' and it was intended and used by the defendant for the purpose of turning its railroad cars, locomotives, etc., in a different direction. The said turntable was supported by and revolved on a pivot under the center thereof, and iron wheels or trucks which were placed under each of the two ends thereof, and which, when the turntable revolved, moved along a circular track around said pivot. It was massive and heavy, and composed of iron and wood material, principally of iron, and was not constructed, as is usual, in a circular pit dug in the ground, but the defendant had negligently erected and constructed the same on the natural unbroken surface of the ground, at the end of its side or switch track, so that all the parts thereof—its sub-structure, beams, and revolving appliances— were exposed to the view of persons passing by; and thereby it was rendered more noticeable and conspicuous than it would have been had it been constructed in the customary manner aforesaid. It was so arranged and placed in regard to its proximity to the end of the said side track that it could be placed in such a position that the ends of the track thereon came up close to those of the side track, and, when placed in this position, it virtually formed a prolongation of the side track, so that a locomotive or car could be rolled onto the same from the side track, and turned in a different direction while it was standing thereon. Around said turntable was constructed a platform or scaffold, circular in shape, and intended and used for a footway for the person revolving the turntable by means of a large wooden beam or lever attached to each of the two ends thereof, and which projected therefrom over the footway, and moved around with the turntable as it revolved. The said turntable was located in an open public place in the town of Alice, and in close proximity to residences; and it was not in any manner fenced or inclosed so as to obstruct the way of any one who might choose to go thereon, and it was at all times accessible to children and the public generally who frequented the locality in which it was situated. It was a dangerous machine, and, when not locked or fastened, the slightest force was sufficient to put it in motion, and cause it to revolve rapidly; and on account of its character, construction, and appearance, but principally on account of the fact that they could easily revolve the same when it was not fastened or locked, the said turntable was calculated to attract, and did attract, the attention of children of tender years, who would be enticed thereto for amusement and pleasure; and such children, ignorant of the nature and construction of said turntable, as well as of the method of operating the same so as not to incur personal injury, would, as a pastime, when the turntable was left unfastened and unguarded, cause it to revolve and ride thereon, and in other ways make it the means of childish sport and diversion, not knowing the danger and hazard to which they thereby exposed themselves. That the defendant, through its proper officers, agents, and servants, was fully aware of the dangerous character of said machine, and well knew of the peril and danger to which the children who lived in Alice would be exposed by leaving the same unguarded and unfastened; and on and about said date of June 16, 1895, and prior thereto, it had in force a rule and regulation for the government and guidance of its officers, agents, and servants who had in charge the care and control of said turntable, which required them to keep the same securely fastened and locked, so that it could not be revolved or moved around; and such rule was well known to said officers, agents, and servants. That plaintiff is the widow of ___ Morgan, now deceased, and of the children born to her in lawful wedlock by her said husband is an only son, Koss Morgan, now a minor of tender years, who up to the present time has been, and is now, being cared for and reared by plaintiff herein. That, on or about said date of June 16th, the defendant carelessly and negligently left said turntable unguarded and unfastened, so that the same could easily be put in motion; and, while it was so unguarded and unfastened, the said Koss Morgan, then ten years old, together with a companion, Ashby Dixon of about the same age as himself, without the knowledge of plaintiff, and without negligence on her part, entered thereon, in quest of sport and pleasure, and to amuse themselves by revolving said turntable and riding thereon, and in other ways to gratify their fancies and desires by playing with the same. At the time, they were each and both ignorant of the dangerous...