Vanover v. Henwood

• Decision Date: 23 April 1941
• Docket Number: No. 2348-7590.,2348-7590.
• Citation: 150 S.W.2d 785
• Parties: VANOVER v. HENWOOD.
• Court: Texas Supreme Court

Page 785

150 S.W.2d 785

VANOVER v. HENWOOD.

No. 2348-7590.

Commission of Appeals of Texas Section A.

April 23, 1941.

Motion for rehearing overruled May 14, 1941.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by L. J. Vanover, on behalf of Melvin Vanover, his minor son, and in his own behalf, against Berryman Henwood, trustee for the St. Louis Southwestern Railway Company of Texas, for injuries sustained by the minor son while he was riding on a push car belonging to the railway when the car ran against a box. A judgment for the minor son was reversed and cause was remanded, 126 S.W.2d 1036, and the plaintiff brings error.

Judgment of the Court of Civil Appeals reversed and that of the trial court affirmed.

Collins, Pate, Hatchell & Garrison, J. J. Collins, and Pitser H. Garrison, all of Lufkin, for plaintiff in error.

Ramey, Calhoun & Marsh, Joe W. Sheehy, and G. L. Brelsford, all of Tyler, and Norman, Stone & Norman, of Rusk, for defendant in error.

F. H. McGregor, of Amarillo, amicus curiae.

HICKMAN, Commissioner.

This suit was instituted by L. J. Vanover for himself and as next friend of his minor son, Melvin Vanover, for damages for personal injuries sustained by the minor through the negligence of defendant in error. Liability was asserted under the doctrine of the turntable cases, generally known as the attractive nuisance doctrine. Based upon answers of the jury to special issues, judgment was rendered in the trial court that Vanover take nothing individually, but that as next friend of the minor he have and recover $500. That judgment was reversed by the Court of Civil Appeals and the cause remanded to the trial court. 126 S.W.2d 1036, 1037.

The accident was described in the opinion of the Court of Civil Appeals as follows: "Melvin Vanover, a boy seven years of age, sustained an injury while riding on a push car belonging to the St. L. S. W. Ry. Co., in the town of Wells. The push car, approximately five feet long, 3½ feet wide and eighteen inches deep, was used in the railway yards for moving heavy articles and was operated over the rails, and when not in use, it was taken from the track and placed in a narrow run-way, running at right angles to the track, between two tool houses. The run-way was a part of the depot grounds and near a highway crossing. The boy lived with his parents near the depot. On the occasion of his injury, he and other children were using the push car for their amusement. It would be pushed by some while others rode on it. At the time of his injury, Melvin was riding in a sitting position with his legs over the front, while two other children pushed it, causing it to run down a decline and against a box, injuring one of Melvin's legs when it came in contact with the box."

There was evidence to the effect that children of the town of Wells played with the push car and in the vicinity of it almost daily in the open and within view of the depot of the defendant in error and that, because the surface of the run-way was hard, the car was easily rolled by small children. In answer to special issues the jury found: 1. The push car was especially and unusually attractive to children of tender years; 2. that defendant in error and his employees should have reasonably foreseen or anticipated that such children would be attracted to it; 3. that Melvin Vanover was attracted to, and caused to play on said car because of its unusual and especial attractiveness; 4. an ordinarily prudent child of the same or similar age, experience, discretion and intelligence as that of Melvin, would have been attracted to such car; 5. that Melvin was not possessed of sufficient mental capacity, discretion and intelligence to understand and realize the likelihood of his sustaining an injury such as that which he suffered; 6. that defendant in error was negligent in failing to lock the push car on the occasion in question; 7. which was a proximate cause of the injury; 8. that he was also negligent in failing to brace the car in order to prevent its being rolled or moved about; 9. which was a proximate cause of the injury; 10. the jury further assessed the minor's damages at $500 and found that his parents sustained no damages. In answer to other special issues, defensive in their nature, the jury exonerated the boy and his parents from various charges of contributory negligence.

As we understand the opinion of the Court of Civil Appeals, all assignments of error presented to that court by the trustee of the railway company were overruled, but the judgment of the trial court was reversed upon the ground that a fundamental error appeared. That fundamental error was held to be the lack of any finding by the jury upon an essential element of the right of plaintiff in error to recover. We quote the holding of the Court:

"But there was no finding by the jury in the case at bar to sustain the allegation in plaintiff's petition that for some time prior to the accident in question, the push car had been habitually used for play in defendant's yards by children of tender years, with the knowledge and consent of the defendant, and thus to make Melvin Vanover an invitee so to use it, with the ensuing duty of the defendant to exercise ordinary care for his safety.

* * * * *

"For lack of such a finding upon that essential element of plaintiff's right of recovery, the judgment will be reversed and the cause remanded."

With that conclusion we cannot agree. We think it was erroneous for at least two reasons: First, the suggested issue was not an essential element of the cause of action. The jury found that defendant in error should have anticipated the presence of children on the premises in virtue of the fact that the push car was unusually and especially attractive to children of tender years and immature judgment. The existence of those facts gave rise to the duty to exercise ordinary care to prevent injury irrespective of whether he had knowledge that children had actually played with it. The first child attracted to it would sustain the same relation to the owner as those later attracted to it.

Second, if the suggested issue were proper, it would not follow that the case should have been reversed. No request was made to the trial court for the submission of such issue....