Guitar Trust Estate v. Keith

What is here said is in response to the motions for rehearing by appellee and appellant, respectively. We are of the opinion we erred in our former decision in reversing the judgment of the trial court in favor of T. C. Keith and as next friend for his minor son, James Albert Keith. That opinion proceeded upon the theory that the minor, James Albert Keith, at the time and place he sustained his injuries, was a trespasser upon the private premises of the appellant. Upon more mature consideration we have reached the conclusion that we erred in so holding. Therefore the opinion heretofore rendered will be withdrawn, and this one substituted therefor.

The reasons for the views we now entertain are as follows:

The suit was instituted by T. C. Keith for himself and as next friend for his minor son, James Albert Keith, to recover of the Guitar Trust Estate, composed of John Guitar, Sr., John Guitar, Jr., and Repp Guitar, trustees, damages alleged to have been sustained by James Albert Keith, and for expenses and medical treatment, etc. The injuries are alleged to have been sustained by the minor son when he fell into a pit on the defendant's property and was burned by a fire therein. The trial was before the court and jury, and upon the answers of the jury to various issues, judgment was rendered in favor of the plaintiff and defendant has appealed. The parties will be referred to as in the trial court.

The exact nature of the plaintiff's cause of action, and the special grounds of recovery, may best be gathered from pertinent and material portions of the plaintiff's petition:

"That said estate owns and operates a cotton gin known as the Guitar Cotton gin, situated in Big Spring, Howard County, Texas.

"That the plaintiff herein, James Albert Keith is a minor of tender years, approximately seven years of age, and that he and T. C. Keith reside in Callahan County, Texas, and the trustees of the Guitar Trust Estate reside in Taylor County, Texas

"That defendant owned and operated a gin plant in Big Spring, and said plant was located on the northwest corner of the block at Cypress and Howard Streets; that the gin yard was open to pedestrians living east of said property, who had for many years used the path across defendant's property.

"That prior to October 27, 1928, the defendant in connection with the operation of its gin plant had excavated a large pit on its property, which pit was used for the purpose of burning leaves and trash from the gin; that said pit was situated upon the property of the defendant, but immediately adjacent to the street and across the path that had been made by the pedestrians crossing said property, said pit being about fourteen feet square and approximately four or five feet deep. That the dirt thrown out of the pit was thrown on the side. The side next the street was left level and unobstructed.

"That there was no definite line or mark indicating the exact location of the street, and it was determined with difficulty just where the property line of the defendant began and where the street ended.

"That there was no guard of any kind protecting pedestrians from the pit; that the pit was in fact situated within a very close distance from the street line, approximately two feet; that there was no guard of any description around said pit, and it was left entirely open. That the defendant had burned cotton seed and other refuse from the gin, and after the fire had apparently died out the pit looked as if there was nothing in it but ashes, but that in truth and in fact immediately underneath the ashes that were on top, there was a smoldering fire, which fire was entirely out of view of anyone looking down into the pit, and could not be seen from the level of the ground.

"That all kinds of old rubbish had been thrown into the fire and all had been destroyed by fire except a few old light globes.

"That the plaintiff, James Albert Keith, on or about the 27th of October, 1928, was traveling along the path across defendant's property from his grandmother's house to a little store that was situated opposite and beyond the defendant's gin plant, and that the plaintiff, James Albert Keith, was rightfully and legally passing along the path; and in passing along the path he came close to the pit above described; that he was a child of tender years, and the location and construction of the pit, and the condition it was in was attractive to him and to children in general, and this plaintiff, in his childish disposition and curiosity was playing on and around the defendant's property, and in passing by said pit observed that there was some old light globes in the pit. Out of his curiosity he stopped and was looking into the pit to see what else, if anything, he could observe; that while near the pit he slipped and fell into the pit, the pit having been dug in a soft soil, where the weight of the child would cause the bank to cave, and it did cave with the child and he slipped into the pit and into the smouldering fire.

"That at the time of the accident, Mrs. T. C. Keith, the mother of the plaintiff, and the plaintiff, were visiting in Big Spring and staying with Mrs. Keith's mother, who lived diagonally across the block from what is known as Leonard's store. That the people who lived in the vicinity of Mrs. Keith's mother's residence have made a well-defined trail across the property of the defendant, and that the trail passes near the pit. That the path had been used by the public for a long time, and it was a commonly used route for the people in that vicinity to go to what is known as Leonard's store, or to other places in that portion of the town. Defendant constructed said pit across said path.

"That the defendant, in the construction of said pit and in the operation thereof, was charged with notice that families lived around said gin plant, and near said pit, and knowing that there would be children passing around said gin plant and said pit, and playing around the plant and the street adjacent to said pit, was charged with notice that the pit in question would be an attraction to children, and that said pit by reason of its proximity to said street was dangerous to the life and welfare of the children playing in and about said property.

"That the defendant was charged with notice that children were apt to come in upon its property, there being no barrier or obstruction of any kind around said pit, nor any line or markings of any kind as to where the edge or side of the street was, the safety of humanity, and especially of children, demanded that a reasonable protection be placed about said property for their use and benefit, which would have been a very simple matter to have constructed, by constructing a grate over the top of said pit, in such a way that children could not get through it; which could have been lifted or removed in order to fill the pit with rubbish or refuse to be burned, and the grate lowered after the rubbish was dumped. This could and would have been a protection to the life and safety of this child and other children in the community; but no effort of any description was made to render the situation safe for children that would naturally pass along said street, or to protect them from the pit; but said pit was left wide open without any care or any protection of any description, and these children of tender years, without realizing the dangers in connection with said pit and not realizing that underneath the coat of ashes smouldered a fire, and when the child in its curiosity sought to investigate the contents of the pit, and slipped or climbed into the pit, his little feet came in contact with the fire under the ashes; and he, being of tender years, and too small to climb out of the pit unassisted, cried for help, being compelled to endure the fire until he was terribly burned. His right foot on the inner side and dorsal surface of the right foot was a very severe and deep burn, amounting to a third degree burn; and the left foot is badly burned on the inner side and dorsal surface. He was badly burned on the medial aspect of the right ankle over the internal malleolus, and extending about one inch above the ankle. He also had a severe burn behind the external malleolus of the right ankle. In addition to these burns he had numerous small and painful burns over the dorsum of both feet, the result of which is that his right foot is shrunken in circumference at the level of the tarsometatarsel joint; the arch of his right foot being weakened and broken down and he has a flat foot as a result thereof, all of which was brought about by the negligence of the defendant, and all of which is the direct and proximate result of the burn as herein alleged, and that said injuries are permanent."

Other portions of the pleadings pertaining to damages, etc., will be omitted. In addition to demurrers, general denials, and special denials, the defendant pleaded that the minor, James Albert Keith, was, at the time and place of the injuries, a trespasser upon the private property of the defendant, who owed such party no duty to keep said property in a condition not to injure the trespasser.

In answer to the special issues, the jury found: (1) That the location, construction, and use of the pit on defendant's gin lot was sufficiently near the street or alley as to make it dangerous for people passing along said street or alley at the time; (2) that there was a fire in the pit at the time of plaintiff's injuries; (3) that the fire was due to defendant's employees burning rubbish therein; (4) that the employees of the defendant were negligent in the location, construction, and use of the pit at the place it was constructed and used on the occasion of the child's injuries; (5) that such negligence was the proximate cause of James Albert Keith's injuries; (6) that he fell into the pit; (7) that he used that degree of care for his own safety that a child of his age, experience, and discretion would use under the same or similar circumstances; (9) that $3,750 would compensate James Albert Keith for the injuries sustained.

Upon this verdict the court rendered a judgment in favor of the plaintiff. The defendant prosecutes this appeal and relies for reversal of the judgment upon four assignments of error and five propositions thereunder. Each of these propositions asserts and seeks to establish that the child, James Albert Keith, at the time and place of his injuries, was a trespasser upon the private property of the defendant, as such was owed no duty by the defendant to use ordinary care to avoid injuring him in the respects complained of in the plaintiff's petition, and defendant was therefore not liable. Originally we sustained the contention, but upon a reconsideration of the testimony we do not believe that we are justified in so holding. A closer analysis of the testimony leads us to the conclusion that, under the pleadings, the evidence is sufficient to acquit the child of being a trespasser at the time and upon the occasion of his injuries.

It is unnecessary to quote from the testimony, but it is our conclusion that it affords reasonable support for the allegations of the petition in the respect under consideration, and which is alone challenged. The pit was in an open space upon the defendant's property, and until the location and construction of same, the public, adults and children, appeared to have passed unrestrained over the place, and were still so using the adjacent portions of the lot. As ascertained by the surveyor or engineer, it was but 17 inches from an alley dedicated to the public for use, and being at the time used by the injured party when his attention was arrested and drawn to the pit and its contents. The pit was about 10 feet from a public street, and the dividing line between the street and alley and the defendant's private property was not marked, and was therefore unknown to the child and the public passing in or along the street or alley and over the property of the defendant. The child was of tender years, being but seven years of age, and aside from the consideration that the child's curiosity was possibly excited by a pit of considerable dimensions, it appears that the pit contained a discarded electrical fixture which arrested his attention and excited his desire. It also contained a discarded flashlight which had the same effect upon his companion of like immaturity.

Under these and other circumstances disclosed by the statement of facts, we find it necessary to overrule each and all of the appellant's propositions which challenge the judgment upon the sole ground that the minor child was a trespasser on the occasion of his injuries. We are justified in so doing, we think, upon the following authorities, and many others not necessary to cite: Flippen-Prather Realty Co. v. Mather (Tex.Civ.App.) 207 S.W. 121; Little v. James McCord Co. (Tex.Civ.App.)151 S.W. 835; Bustillos v. S.W. Portland Cement Co. (Tex.Com.App.) 211 S.W. 929; Pedro Sedita v. Steinberg et al., 105 Conn. 1, 134 A. 243, 49 A.L.R. 154; Tucker v. Draper, 62 Neb. 66, 86 N.W. 917, 54 L.R.A. 321; Coeur d'Alene Lbr. Co. v. O. J. Thompson (C.C.A.) 215 F. 8, L.R.A. 1915A, 731.

As this case comes before us the record contains no manner of objection to the court's charge. The propositions are based upon assignments, the first of which complains that the court overruled the defendant's motion for an instructed verdict at the conclusion of the plaintiff's testimony because the testimony showed the injured party to be a trespasser. The second assignment complains of the court's overruling a second motion for an instructed verdict at the conclusion of all the testimony for the same reason. The third and fourth assignments are but duplicates of the first and second, evidently directed to the same ruling of the court, and complain that the trial court rendered judgment against the defendant with the undisputed evidence showing the child to be a trespasser. Under this character and manner of attack, and in view of the pleadings and testimony, we must necessarily overrule each of the defendant's propositions.

The pit was constructed and used without guards or screens, and the jury, in response to the issues, especially 4 and 5, definitely determined that the defendant was negligent in the location, construction, and use of the pit at the time and place and on the occasion of the child's injuries, and that such negligence was the proximate cause of the injuries. Since neither party objected to the charge as submitted, it will be construed in the light of the pleadings and evidence. The submission of the issues must be presumed to have some material bearing on the case, and in the absence of objections by either party they will be presumed to embrace all controverted elements essential to a decision on the ultimate issue. Driskill Hotel Co. v. Anderson (Tex.Civ.App.) 19 S.W.2d 216.

The appellant presents no question challenging the accuracy or comprehensiveness of the issues submitted. And it is not believed that there arises any question as to the plaintiffs' having waived an issue essential to recovery under the rule announced in Ormsby v. Ratcliffe,117 Tex. 242, 1 S.W.2d 1084, and Bulin v. Smith (Tex.Com.App.) 1 S.W.2d 591. If anything were lacking to support the judgment in the instant case, it would fall under the rule announced in North v. Atlas Brick Co., 13 S.W.2d 59, 61, where the Commission of Appeals, in discussing the matter of the trial court's having submitted a part, at least, of an ultimate controlling issue, used this language: "If it did not contain all of the elements necessary to a recovery, it at least contained some indispensable elements, and therefore was a submission in part, at least, of the issue which we have held to have been well pleaded, and such issue cannot be held to have been waived under the rule announced," in the above cases.

That is, the pleadings and testimony justifying it, the court would be deemed to have indulged favorable and necessary findings in support of the judgment. The principle would evidently have application in the present case, if indeed there be any necessity for its application.

The appellant has not suggested the presence of any fundamental error in the record. We have discovered none. Therefore, for the reasons assigned, the original opinion will be withdrawn, the judgment pursuant thereto set aside, and the judgment of the trial court affirmed.

It is so ordered.