Smith Bros. v. Williams , 294 S.W. 309 ( 1927 )

It appeared from the charter granted by the state to appellant that the purposes for which it was incorporated were "to contract for the erection, construction or repair of any building, structure or improvement, public or private, and erect, construct or repair the same, or any part thereof, and to acquire, own and prepare for use any material for said purposes, together with the right to do such other and further things as are reasonably necessary and incident to the conduct of the aforesaid authorized business," and it appeared from other evidence heard at the trial that appellant never engaged nor undertook to engage in the business of transporting persons in trucks it owned and operated, and never authorized Premeaux or any of its motortruck drivers to carry appellee or any one else on trucks he or they drove for it. Therefore we agree with appellant that Premeaux acted outside the scope of his authority as a driver of its motortrucks when he permitted appellee to ride upon the one he was driving on the occasion of the accident. And but for the fact, as found by the jury, that appellee, because of immature age and lack of discretion, did not know and appreciate the danger he incurred in riding on the truck as he did, we would agree with appellant in its further contention that it was not liable to appellee as determined by the judgment. That finding was warranted by evidence before the jury is not specifically questioned by appellant. We think the effect of the finding was to bring the case within the rule recognized in Cook v. Navigation Co., 76 Tex. 353, 13 S.W. 475, 18 Am. St. Rep. 52, Railway Co. v. Rodgers, 89 Tex. 675, 36 S.W. 243, and other cases cited by appellee, and to make Railway Co. v. Anderson,82 Tex. 516, 17 S.W. 1040, 27 Am. St. Rep. 902, Railway Co. v. Cooper,88 Tex. 607, 32 S.W. 517, Main Street Garage v. Eganhouse Optical Co. (Tex.Civ.App.) 223 S.W. 316, and other Texas cases cited by appellant, inapplicable.

In the Rodgers Case referred to, employees of the railway company permitted the plaintiff, a boy between 12 and 13 years of age, to ride on a hand car they were operating on the railway company's tracks. As a result of negligence of said employees, it was claimed, the boy was thrown upon the track and run over by the car. The court held that if it was dangerous for the boy to ride upon the car, and if the boy by reason of his age and want of intelligence was not capable of appreciating the danger, and the employees of the railway company invited or permitted him to get upon the car, the railway company was liable for the injury to him, "although (quoting) its employees may have been forbidden to permit any one to ride upon said car." We think this case was not materially different from that one. Riding on a hand car was not more dangerous than riding as appellee did upon the motortruck.

The facts in Cook v. Navigation Co. were much like they were in the Rodgers Case and in this case. A girl between 13 and 14 years of age, on the tugboat at the instance of employees without authority to invite her there, fell therefrom and was drowned. The court said the act of inviting the girl and her little brother on board the boat "was not within the scope of the authority of the company's servants, and if the right of action depended upon the invitation the company should not be held liable." "But we think," the court added, "it was the duty of the company not to permit them on board if their presence there was dangerous. When the company left the management of the boat to its servants the duty devolved upon them, and it cannot be permitted to say that their action in allowing the children on the boat was contrary to orders, and that it was not liable." In another part of the opinion the court said:

"Although the defendant company may have owed the deceased no duty as a passenger, it does not follow that they are not responsible for her death. Every person using dangerous machinery is under obligation to operate it in a careful manner. He may owe no duty to one who has attained the years of discretion, and who voluntarily comes in contact with it, to guard him against dangers that are apparent. But as to children the rule is different. Evansich v. Railway, 57 Tex. 123; Evansich v. Railway, Id. [57 Tex.] 126. Not being capable of exercising that degree of circumspection in the face of danger that adults are expected to use, a higher degree of care must be exercised towards them. If it be negligent to leave dangerous machinery in a place where children are likely to tamper with it, without taking precautions to prevent them from injuring themselves, we think it equally negligent to permit them aboard a tugboat, where there is danger of them being drowned, without taking adequate precautions to avoid all accidents."

In its brief appellant cites cases decided in other states which seem to support its contention, but Cook v. Navigation Co. and Railway Co. v. Rodgers, referred to above, were decided by the Supreme Court of this state, have never been overruled, and, as we construe them, authorized the judgment in appellee's favor. Therefore it is affirmed.