Sullivan v. Trammell

• Decision Date: 15 June 1939
• Docket Number: No. 2037.,2037.
• Citation: 130 S.W.2d 310
• Parties: SULLIVAN et al. v. TRAMMELL.
• Court: Texas Court of Appeals

130 S.W.2d 310

SULLIVAN et al. v. TRAMMELL.

No. 2037.

Court of Civil Appeals of Texas. Waco.

June 15, 1939.

Rehearing Denied July 6, 1939.

Appeal from Fifty-Fourth District Court, McLennan County; D. W. Bartlett, Judge.

Action by Maurine Trammell, by next friend, against R. T. Sullivan and another for injuries received by plaintiff when she fell into a hole which was left by an employee of the defendants after removing a gasoline storage tank from the backyard of the plaintiff's home. Judgment for plaintiff, and defendants appeal.

Affirmed.

Kyle Vick, of Waco, and Geo. W. Barcus, Asst. Atty. Gen., for appellants.

George Clark and Claude Miller, both of Waco, for appellee.

GEORGE, Justice.

This suit was brought by J. M. Trammell, as next friend for his minor daughter, Maurine Trammell, against R. T. Sullivan and J. R. Knight for damages growing out of personal injuries sustained by her, which, it was alleged, were caused by the negligence of appellants' employee, Earl Barnes, and appellant R. T. Sullivan. The trial court rendered judgment in favor of Maurine Trammell on the jury's findings.

Appellants contend (1) that the evidence shows that Maurine Trammell was guilty of contributory negligence as a matter of law; (2) that there is not any evidence in the record showing that the appellants, or either of them, were guilty of any acts of negligence which proximately caused the injury complained of; (3) that the acts of the father, J. M. Trammell, (a) in failing to notify appellants of the existence of the hole, (b) in failing to fill in the hole, and (c) in failing to prevent Maurine Trammell from playing in and around the hole were independent and intervening agencies and were the sole and only causes of her injury; and (4) that the trial court erred in refusing to submit the following special issues requested by appellants, to-wit:

"Special Issue No. 3: Do you find from a preponderance of the evidence that the failure on the part of the plaintiff, Maurine Trammell, to see the hole at the time she fell into the same was carelessness on her part?"

"Special Issue No. 4: Did the act of plaintiff, Maurine Trammell, in failing to see the hole in the ground at the time she fell into the same proximately cause or contribute to cause the accident and injury sustained by her?"

R. T. Sullivan and J. R. Knight are partners doing business under the firm name of Waco Oil Company. They installed a pump and gasoline storage tank on the T. Jeff Smith farm near Waco during the time Cox Bros. conducted a dairy thereon. The pump and gasoline tank were placed in the back yard near the woodpile between the dwelling house and the barn. J. M. Trammell moved on the farm as a tenant in January 1936. Maurine Trammell moved to her grandmother's for the purpose of completing the school year in the Lorena schools and only spent the weekends with her parents. Maurine was eleven years of age and in the sixth grade. R. T. Sullivan, in February 1936, sent Earl Barnes to get the pump and tank and instructed him to fill up the hole that would be left by the removal of the tank. The excavation was three feet by five feet and between eighteen inches and three feet in depth. Barnes only partially filled in the excavation. He promised to return and complete filling it up level with the surrounding ground. Maurine Trammell, on May 9, 1936, after sundown and before dark, while running to catch a ball thrown by her sixteen year old cousin, Eloise Horton, fell into the hole and received, as a result of the fall, a broken arm and other minor injuries. She had seen the hole on her former weekend visits to her home and had played in, over and around it, apparently without any injury to herself. She did not know that she was close to the hole until she fell in it. She had forgotten all about it. She was looking at the ball at the time she fell instead of where she was going. She knew enough about a hole like that to know that if she got around too close and fell in it, she was liable to receive some injury. The evidence does not inform us of the size of the back yard, the place where the girls commenced to play ball, whether either had played near to the hole, the speed of the thrown ball, whether it was thrown horizontally or up into the air, in what part of the yard the girls were playing ball at the time Maurine ran to catch the thrown ball at the time she fell in the hole, how far they were playing from the hole, how long it had been since Maurine had seen the hole prior to the time of her injury, whether the hole was plainly visible to her from the position in which she commenced to play ball, whether she had any other convenient and accessible place in which to play ball and whether she knew or realized the likelihood of receiving an injury if she played ball in the yard by reason of the existence of the hole.

Appellants plead in substance that Maurine Trammell, while a minor, was a child of over the average intelligence and was on the date of her injury fully capable of understanding and comprehending danger to herself and the consequences incident to playing in and around the hole in the ground, and that she was guilty of contributory negligence proximately causing or proximately contributing to cause her injury in that (a) she was living on and occupying the land and had been for many months and knew of the existence of the hole, and (b) she negligently and carelessly played in and around the hole, knowing the same to be there, in disregard of her own safety.

The acts and omissions of Barnes were the acts and omissions of Sullivan and Knight, and his knowledge in the matter was their knowledge, for the reason that he, in removing the tank, was acting within the scope of his employment and in the furtherance of their business, and they are responsible for his failure to fill in the excavation. Cook v. Houston Direct Navigation Co., 76 Tex. 353, 13 S. W. 475, 18 Am.St.Rep. 52. The jury's findings to the effect that Maurine Trammell's injuries were proximately caused by the wrongful act of appellants' employee in failing to fill in the excavation and in leaving the hole uncovered have strong, support in the evidence. Barnes admitted that he did not fill the excavation level with the surrounding ground. Both appellant Sullivan and his employee Barnes knew that they owed the duty of filling in the excavation, and that if they did not do so, they would be breaching that duty. They also anticipated the danger of leaving the hole unfilled. Henry v. Publix Theatres Corporation, Tex.Civ.App., 25 S. W.2d 695.

The difficult question presented is whether Maurine Trammell, under the circumstances manifest by the record in this case, was guilty of contributory negligence as a matter of law in playing ball in the yard on the occasion she received her injury. Our Supreme Court, speaking through Judge Brown, in the case of Lee v. International & G. N. R. Co., 89 Tex. 583, 36 S.W. 63, 65, said: "Negligence, whether of the plaintiff or defendant, is generally a question of fact and becomes a question of law, to be decided by the court, only when the act done is in violation of some law, or when the facts are undisputed and admit of but one inference regarding the care of the party in doing the act in question;" and the Supreme Court, in the case of Wininger v. Fort Worth & D. C. R. Co., 105 Tex. 56, 143 S.W. 1150, laid down the rule that this court is not authorized to reverse the judgment of the trial court and render judgment for appellants, if, discarding all adverse evidence and giving credit to all evidence favorable to appellee and indulging every legitimate conclusion favorable to the appellee which might have been drawn from the facts proved, a jury might have found in favor of appellee. If the undisputed evidence in this case showed the existence of danger in playing ball in the back yard and that Maurine Trammell had knowledge or was chargeable with knowledge of the danger and exercised no care whatever for her own safety and offered no excuse for its absence, then there is established a case of contributory negligence as a matter of law. Galveston H. & S. A. R. Co. v. Price, Tex. Com.App., 240 S.W. 524; Cisco & N. E. R. Co. v. McCharen, Tex.Civ.App., 118 S. W.2d 844.

Applying the above rules to the facts of this case, we have the situation of an eleven year old girl being injured by falling into a hole wrongfully left in her father's back yard by appellants' employee, where she had a right to play, while she was running to catch a thrown ball, at a time when she was not conscious of the existence of the hole and its location. The fact that she had seen the hole on her former visits to her father's home and had played in, around and over it without harm to herself, and the fact that she had sufficient intelligence to know that if she got too close to the hole and fell in that she might receive some character of injury would not of themselves convict her of contributory negligence. The former would tend to negative the idea that she understood and appreciated the danger incident to playing ball in the back yard, and the latter is only a circumstance bearing on the issue of her knowledge of the danger and whether she should be charged with knowledge of such danger. Whether she should have remembered that evening the existence of the hole and its location and refrained from playing in the yard so long as it remained unfilled is a circumstance to be considered by the jury in connection with the silence of the record as to whether she had any other convenient and accessible place in which to play in ascertaining what an ordinarily prudent person would have done under the same and similar circumstances. That she had forgotten the existence of the hole means that she was not conscious of the hole's existence and its location and of any danger in connection therewith and negatives the idea that she either understood or appreciated the peril...