Sullivan v. Trammell , 130 S.W.2d 310 ( 1939 )

I cannot agree with the disposition of the case as made by the majority opinion.

The danger incident to playing around the hole was open, visible and readily apparent to anyone of normal intelligence. It was not a concealed danger or tricky situation such as was dealt with by the courts in Duron v. Beaumont Iron Works, Tex.Com.App., 7 S.W.2d 867, 9 S.W.2d 1104, 1105. Maurine Trammell was eleven years old and apparently of normal mentality for one of her age. She had spent the weekends with her parents at the family residence and had had an opportunity to be around and observe the hole each week from about February 1st to May 9th, the date of her injury. She testified:

"Q. You knew this hole was there in the ground, didn't you? A. Yes, sir.

"Q. How many times do you think you had seen it? A. I had seen it all the time."

She further testified without equivocation that she knew that if she played too close around the hole and fell into it, she was liable to be injured. There were no pleadings, evidence or findings of the jury that she did not understand and appreciate the danger. She said she forgot about the hole when the ball was thrown and ran into it while trying to catch the ball.

It is a well established rule that where the injured party knew of and fully appreciated the danger in time to have avoided injury, he cannot recover, even though the defendant negligently created the dangerous situation. 30 Tex.Jur. 882; Stamford Oil Co. v. Barnes, 103 Tex. 409,128 S.W. 375, par. 7, 31 L.R.A., N.S., 1218, Ann.Cas. 1913A, 111; City of Menard v. Coats, Tex. Civ. App. 60 S.W.2d 831; Dowlen v. Texas Power Light Co., Tex. Civ. App. 174 S.W. 674; Freeman v. Garcia,56 Tex. Civ. App. 638, 121 S.W. 886; Jones v. Beck, Tex. Civ. App.109 S.W.2d 787. It has been held that "where a minor possesses such a degree of intelligence as to appreciate the danger involved in his act, he is chargeable with contributory negligence as any other person." City of Menard v. Coats, Tex. Civ. App. 60 S.W.2d 831, 833; Jagoe Construction Co. v. Harrison, Tex. Civ. App. 17 S.W.2d 861; Krisch v. Richter, 61 Tex. Civ. App. 563, 130 S.W. 186; Dudley Orr v. Hawkins, Tex. Civ. App. 183 S.W. 776; City of Brownwood v. Anderson, Tex. Civ. App. 92 S.W.2d 325; Manlove v. Lavelle, Tex. Civ. App.235 S.W. 324; Freeman v. Garcia, 56 Tex. Civ. App. 638,121 S.W. 886; Texas Public Service Co. v. Laughead, Tex. Civ. App.73 S.W.2d 925.

There are cases in which it has been held that temporary forgetfulness justifies conduct that would otherwise amount to contributory negligence, but an examination of such authorities will disclose that the rule has application only where the dangerous situation is not readily apparent or where the mind of the injured party is distracted by the sudden happening of an unexpected event or emergency which greatly confuses or overwhelms the mind. It ought not to be applied where the dangerous situation is apparent and the party seeking to justify his conduct deliberately brings about the event which causes the distraction or where he merely allows his mind to become so absorbed in matters of his own concern as to obliterate, temporarily, his knowledge of the danger. See in this connection: 45 C.J. 950; 20 R.C.L. 109; Fort Worth R. G. R. Co. v. Robinson, 37 Tex. Civ. App. 465, 84 S.W. 410, Id., 99 Tex. 110,87 S.W. 667.