Wichita Falls Traction Co. v. Adams

• Decision Date: 10 February 1912
• Citation: 146 S.W. 271
• Court: Texas Court of Appeals
• Parties: WICHITA FALLS TRACTION CO. v. ADAMS.

146 S.W. 271

WICHITA FALLS TRACTION CO. v. ADAMS.

Court of Civil Appeals of Texas. Amarillo.

February 10, 1912.

Rehearing Denied March 8, 1912.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Wilbarger County; P. A. Martin, Judge.

Action by Norman Adams, by next friend, A. B. Adams, against the Wichita Falls Traction Company. From a judgment for plaintiff, defendant appeals. Affirmed.

C. C. Huff and Orville Bullington, for appellant. L. H. Mathis, for appellee.

GRAHAM, C. J.

This case was an action for damages for personal injuries, brought by appellee against appellant in the district court of Wichita county, based on allegations of negligence on the part of appellant, its servants, agents, and employés, resulting in the injuries and damages complained of.

On the trial below, the principal issues raised by both pleadings and evidence were: (1) Was culpable negligence shown; and, if so, (2) was G. L. Mater, as lessee and tenant of appellant, alone liable for the injuries flowing from such negligence?

A trial before a jury resulted in a verdict and judgment in favor of appellee and against appellant, from which this appeal is prosecuted.

The record shows that the injuries for which the recovery was had were sustained on Sunday, about June 6, 1910, by a son of A. B. Adams, which son was, at the time of the injury, slightly more than two years old; that on the date of the injury, and for some time prior thereto, appellant owned a street car line located, not only in the city of Wichita Falls but extending from said city to Lake Wichita, about 6½ miles from the city; that in the edge of this lake appellant had constructed and also owned a large pavilion, built of concrete, the car line running within a few steps thereof, with a landing for receiving and discharging passengers from the cars near the southeast corner of the pavilion. The pavilion was about 60×100 feet, ground dimensions, had a basement below the level of the ground, which was largely used as a workshop; had a first floor, which contained a large hall in the center, with concrete walks from 12 to 14 feet wide entirely around it, with large doors at intervals opening from the hall onto these walks; the second floor contained a large room for dancing and other purposes, and was also surrounded on all sides by a wide walk or promenade. The stairways leading from the first floor commenced something like 6 feet back from the front of the main building, and were so constructed as that persons desiring to go to the second floor from the front and main entrance were compelled to use a portion of the 12 to 14 foot walks surrounding the first floor; from the back of the pavilion were piers, extending from near a level with the first floor and into the lake, and steps from these piers led down to the water's edge, where boats, owned by appellant and kept by it for hire, received and discharged those using them.

The record, we think, shows also, without question, that the pavilion, boats, and other improvements owned and maintained by appellant, or caused to be maintained by it at this lake, were so owned and maintained as a resort for those seeking amusement and recreation, and that it in all proper ways encouraged and induced the public to patronize said resort, because of the profits that would arise to it from car fare from the city to said resort and return, as well as the profits that would arise from the privileges, such as were awarded Mater under his contract hereinafter copied; the record also showing that appellant thus invited and carried the public to said resort, including the portion thereof where the injury occurred, the record amply warranting the conclusion that on Sundays and other holidays this resort was more liberally patronized than on other occasions.

The following contract was entered into by and between appellant and Geo. L. Mater, of date February 9, 1910: "Wichita Falls, Texas, February 9, 1910. Mr. Geo. L. Mater, Wichita Falls, Texas—Dear Sir: Confirming understanding had with our Mr. Palmer L. Clarke, with reference to concessions at Lake Wichita, beg to state that it is understood and agreed between us that you are to have exclusive privilege for the sale of confectionery, pop corn, peanuts, ice cream, cigars, soft drinks, lunches, and meals at Lake Wichita, for a period of one year, beginning March 1st, 1910, for which privilege you agree to pay us twenty-five (25%) per cent. of the gross receipts received from the sale of goods under this privilege. It is understood that we are to select the cashier to handle these funds and you are to pay the cashier's salary. It is also understood that at any time the management is not satisfactory to us and same is not being handled as we think it properly should be, on giving you notice, we are to take your stock of utensils at an appraised valuation, figuring first cost and general wear and tear, shortage, etc., and this contract shall immediately terminate. Yours truly, Wichita Falls Traction Co., by J. A. Kemp, President.

"I understand and accept the above. Geo. L. Mater."

It was pleaded by appellant, and evidence was introduced tending to support the contention, that said written contract was not all the contract between appellant and said Geo. L. Mater; and evidence was introduced for the purpose of showing that it was really agreed, as a part of said contract, that said Mater should also have exclusively the first floor of said pavilion as a place in and from which to conduct his business, and that Mater was to keep that floor clean and clear of obstructions, etc.

As the principal questions arising and to be discussed on this appeal will be based upon the charge of the court as given and special charges requested and refused, we think proper to copy here the main charge, as well as the material special charge given, and they are as follows:

Main Charge.

"In this case, the plaintiff, a child, sues by parent or next friend the Wichita Falls Traction Company, alleging personal injury resulting from the fall of an iron gas tank or reservoir upon plaintiff's hand, thereby wounding and injuring his hand. Plaintiff charges that said gas tank was allowed to remain standing on end in a place where it was dangerous to a small child, and that such fact constituted negligence upon the part of the defendant, its agents and employés, and that such negligence was the proximate cause of plaintiff's injury.

"The defendant pleads a general denial, putting in issue all the material allegations in plaintiff's petition. It also specially pleads, in effect, that if the plaintiff was injured as alleged, and negligence was the proximate cause of the injury, that it was the negligence of one George Mater and his agents and employés, and not the negligence of the defendant and its employés, by reason of the fact, as alleged by defendant, that the premises where the accident occurred were in the exclusive control of said Mater, and that defendant was under no legal obligation to keep same free from dangerous articles or obstructions. Upon the issues thus drawn between the plaintiff and the defendant, the court charges you as to the law of the case as follows:

"(1) Wherever you may find in this charge the term `negligence' used, it means a failure to exercise that degree of care that an ordinarily prudent person would exercise under the same or similar circumstances.

"(2) If you find and believe from the evidence that the plaintiff, Norman Adams, was injured by the falling of a gas drum or tank upon his wrist and hand, and that such injury occurred upon the property under the control of the defendant, Wichita Falls Traction Company, and upon which property said defendant had invited the general public for the purpose of amusement, and if you further find that the said gas tank or reservoir was left by the agents of the defendant company in such a place and position as to be dangerous to persons of the age and intelligence of the plaintiff, and if you further find that such action upon the part of the defendant and its agents and employés constituted negligence, as that term has been defined to you, then you are instructed to find a verdict for the plaintiff and assess his damages as hereinafter charged.

"(3) On the other hand, if you fail to find that the pavilion where the accident occurred was under the control of the defendant company, or, if you fail to find that the placing of the gas tank or reservoir, or the leaving of it, at the place where the accident occurred was negligence on the part of the defendant, its agents and employés, then you will find for the defendant.

"(4) The defendant, by plea, claims that this accident, if due to negligence at all, was due to the negligence of one George Mater and his agents, servants, and employés, and not to the negligence of the defendant, and upon this issue you are instructed to take into consideration the contract introduced in evidence and all other facts and circumstances proven, and determine from all the evidence, whether the place where the accident occurred was under the exclusive control of Mater and his servants, as lessee of this part of the pavilion, or whether he and those working under him were really the agents and employés of the defendant, carrying forward the purposes and objects of defendant. In arriving at a conclusion as to this question, you are instructed that the real intention of Mater and the officers of the defendant company when the contract was made between them would govern. If, by the terms of Mater's contract, it was meant that the defendant company surrendered all its rights to the first story of the Colonnade, including the concrete walks where the accident occurred, for a certain period of time, then the negligence, if any, was chargeable to Mater; and if, on the other hand, it was meant that the defendant company simply let out to said Mater certain privileges, and retained its general ownership...