Simonton v. Citizens' Electric Light & Power Co.

• Decision Date: 27 March 1902
• Citation: 67 S.W. 530
• Parties: SIMONTON v. CITIZENS' ELECTRIC LIGHT & POWER CO. et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

67 S.W. 530

SIMONTON v. CITIZENS' ELECTRIC LIGHT & POWER CO. et al.¹

Court of Civil Appeals of Texas.

March 27, 1902.

Appeal from district court, Harris county; Wm. H. Wilson, Judge.

Action by W. W. Simonton against the Citizens' Electric Light & Power Company and others. Judgment for defendants. Plaintiff appeals. Affirmed.

Lovejoy, Sampson & Malevinsky, C. E. & A. E. Heidingsfelder, and Burke & Griggs, for appellant. Hutcheson, Campbell & Hutcheson, for appellees.

PLEASANTS, J.

Appellant brought this suit to recover damages for injuries to the person of his minor son, alleged to have been caused by the negligence of the defendants. The acts of the defendants which are alleged to have caused the injury to plaintiff's son, and are charged to be negligent, are thus stated in plaintiff's petition:

"(1) That heretofore, to wit, on or about the 27th day of August, A. D. 1899, and for a long time prior thereto, the said defendants had illegally and unlawfully erected and maintained a certain large electric light pole upon a sidewalk on a street in the city of Houston known as Congress avenue, and located between certain streets in said city known as Chenevert and Hamilton streets, which said pole was near the home of the plaintiff, in said city of Houston, as aforesaid; that said pole, together with many others in the city of Houston of a similar character, were erected and used by said defendants in the conduct of their said business, which the plaintiff alleges to be a transmission and distribution of electric currents for lighting purposes for hire; and that said pole, and the wires erected and maintained on said pole, were used for the purpose of furnishing electric lights to private citizens in the city of Houston, and not for any public use or purpose.

"(2) That before or after the erection of said pole the defendants illegally and unlawfully placed or drove a great number of iron spikes in said pole, commencing about twenty inches from the ground or sidewalk, and leaving a space of about twenty inches between each spike, forming a row or rows of spikes or foot rests, reaching to a point near the top of said pole; that said spikes or foot rests so placed and left remaining protruded or stood out from the sides or surface of said pole to the extent of five or six inches, forming the steps of a sort of ladder, which was primarily intended to be used by the employés of said company in climbing said pole for work thereon; that said pole was erected and maintained in said condition, not upon any private property of the defendant company, but upon a public sidewalk or street in said city of Houston as aforesaid, and upon a pathway that was used and frequented by the citizens of Houston at all times of the day and night.

"(3) That said spikes or steps were placed or started so near the ground that children of tender years, and with absolute want of discretion, or knowledge of the danger resulting therefrom, could climb said poles with the same facility and ease as an adult, and that said poles were thus left and maintained by the defendants, with said spikes or steps so arranged and constructed as to prove a dangerous menace to the lives and limbs of children in said neighborhood.

"(4) That the manner of construction and maintenance of said pole as aforesaid, and its condition, was a direct invitation to children in said neighborhood, and particularly to the plaintiff's child, Gussie Simonton, who was a child of immature discretion, and without judgment or knowledge as to the danger therewith, to climb said pole and play thereon; that it was well known to the defendants, their servants, agents, and employés, that the children in said neighborhood did use said pole to climb and play thereon, and that notwithstanding such knowledge on the part of the defendants, their servants, agents, and employés, they maintained said pole in said dangerous and hazardous condition, and invited the children in said neighborhood to indulge in the pastime of climbing upon said pole; that said pole, in its condition, was unusually attractive and seductive to children of tender years, and it was especially and unusually calculated to attract, and it did attract, small children, and appealed to their instinct to play, and it tempted and lured them, and thereby caused them to climb thereon, and in other ways made it the means of children's sport and diversion, they being ignorant of the danger thereby incurred.

(5) That on or about the said 27th day of August, A. D. 1900, the plaintiff's child, Gussie Simonton, being at that time of the age of 7 years, and lacking mature judgment and discretion, and being unmindful of the danger and hazard connected therewith, while playing with several children around and about said pole, as was their habit and custom, the said Gussie Simonton climbed on said pole, and onto the steps or spikes attached thereto, as aforesaid, and that whilst the said Gussie Simonton was on said pole he lost his balance, and was precipitated from a great height on said pole to the sidewalk below, fracturing his skull, and breaking his arm, injuring his spine and back and internal organs, to wit, his liver, kidneys, and also greatly bruising and injuring his legs and body; that his injuries so received at said time and place have rendered said Gussie Simonton a cripple, and, in addition to the injuries hereinbefore set forth, impaired his eyesight and mental faculties.

"(6) The injuries to the said Gussie Simonton as aforesaid were directly and proximately caused and occasioned by the negligence and carelessness of the defendants, their servants, agents, and employés, in that they negligently and carelessly, and without any regard to the life or security of minor children of immature judgment and discretion who lived in the neighborhood of said pole and played thereon, equipped and maintained said pole with said spikes or steps thereon as aforesaid in a dangerous and hazardous...