Charles v. El Paso Electric Ry. Co. , 1921 Tex. App. LEXIS 1043 ( 1921 )

Ira O. Charles, Jr., a minor seven years old, suing by next friend, brought this action against several corporations which afterwards were taken over by Stone Webster, Incorporated, to recover damages for personal injuries alleged to have been caused by the negligence of defendant company.

The negligence charged is that defendant corporations stacked a pile of cross-ties in the public street in the city of El Paso, without authority of law, and in a dangerous and negligent manner so that ties upon top of the pile would easily topple and fall upon application of slight force by a child; that they were attractive to children; were a nuisance in the public street; that plaintiff was young and did not appreciate the danger; that while playing upon the pile of ties one of them fell upon him and crushed his leg.

The court instructed a verdict for the defendants. Plaintiff has appealed.

The facts disclosed by the testimony are as follows:

The appellees were ordered by the city council to place its street car track upon grade preparatory to paving the street, for which a contract had been let. They were so engaged at the time of the accident in the block where it happened, by putting in new ties. The side of the street and sidewalk where the work was being done and the accident happened was blocked with horses, wooden barricades at each end of the work. Upon the day of the accident or one or two days before that defendant stacked crossties into a pile five or six feet high, which was partly on private property, but extended three or four feet over that portion of the public street termed the sidewalk, no artifical sidewalk having been constructed, but was used by the public as such.

Witness for defendant testified that the ties were properly piled, ten each way, to a height of five or six feet, and two ties placed across the upper layer near the middle as a brace; that they could not have fallen off unless their position had been changed; that none of them were just hanging over the edge. A witness for plaintiff testified that the tie which fell upon the plaintiff was upon the side of the stack so as to be in the street, was partly resting upon another tie lying lengthwise upon it and overhanging about half its width, and so that it would topple and fall upon slight force being applied to it.

The plaintiff, a boy seven years and two months old, was playing with another boy on top of this pile of ties. Having climbed up on the south side, played, and ran around on top and then started to get down on the north side of the stack, in descending he passed over this tie, placed his hand over it, and then he jumped, thus pulled the tie down, and it fell upon his leg and broke it.

The appellant charges that the court erred in instructing a verdict for the defendants because, he says, the facts show actionable negligence upon their part, and that a child of this age under the facts could not be guilty of contributory negligence as a matter of law, that defendants were bound to take notice of the rights of children in the streets, of the probability of their being and playing therein, and of the liability of children to follow childish instincts and to climb upon and play upon a lot of ties stacked therein, and that these facts gave rise to the duty not to stack them in such a way as that when the child was playing on them one would fall upon slight force and injure it.

In the first place, this case has been plead and tried upon the theory that the stack of ties constituted a place or thing attractive to children as a place to play, under the principle of law applied in the Turntable Cases. These cases turn upon the fact that they, being private property of the defendants, were especially and unusually attractive to children, and in this fact the court or jury may find an invitation to children to use it as a plaything. When the facts justify such finding, then the law charges the defendant with the duty to so construct and maintain such things in such way as that they will not be dangerous.

There is no evidence in this record that this pile of ties was attractive to children, unless the mere fact that children played upon it be evidence of the fact; so we have no proof of an invitation by estoppel or otherwise. But appellant says these ties were upon the public street or sidewalk, where he had the right to be. We do not concede this, but, on the other hand, think the facts show that the public character of the sidewalk had been temporarily abandoned by the city giving defendants authority to close it for the purpose of the public work, and it had in fact been done.

But we are further of the opinion that, if we should be mistaken in putting this construction upon the facts in evidence, no issue of negligence could arise upon the allegations and evidence here because of the proximity of the pile of ties to the sidewalk, or that a portion thereof was in fact upon the sidewalk, for plaintiff was not injured by reason of any use of the sidewalk but while going upon and using for purposes of amusement the property of defendants. Simonton v. Elec. P. Co. et al., 28 Tex. Civ. App. 374, 67 S.W. 530; Texas Mex. Ry. Co. v. Garcia, 216 S.W. 1109.

The appellant has presented many ingenious arguments to show that the facts here constitute actionable negligence and cite authorities from other states to support the views urged, but we have reached the conclusion that they are not supported by the Texas cases, and that the court did not err in instructing a verdict. In support of this view see Railway Co. v. Edwards, 90 Tex. 65, 36 S.W. 430, 32 L.R.A. 825; Railway Co. v. Morgan, 92 Tex. 98, 46 S.W. 28; Dobbins v. Railway Co., 91 Tex. 60,41 S.W. 62, 38 L.R.A. 573, 66 Am. St. Rep. 856; also the Missouri case of Kelly v. Benas, 217 Mo. 1, 116 S.W. 557, 20 L.R.A. (N. S.) 903.

Affirmed.