Gulf, C. & S. F. Ry. Co. v. Chappell

KING, J. Appellants have called our attention, in their motion for rehearing, to their supplemental, brief containing their seventh assignment of error, which we overlooked when this case was under submission. Said, assignment is to the effect that the court erred in its findings and conclusions that the-defendahts are liable herein, because the-undisputed evidence shows that the turntable-was on private property of defendants; that defendants had equipped the same with the-lock bar, which held it fast and immovable; that after same was used by defendants-before the accident the lock bar was properly-placed so as to secure said turntable.; that the injured child was a trespasser; that none of defendants’ employés unlocked said turntable, but same was misplaced by some-trespasser without defendants’ knowledge or consent. In support of this assignment appellants-rely upon the testimony of John Chandler, who testified that the turntable was used on-December 22d, three days prior to the accident to Clara Chappell, and R. Esquivilie, J. B. Scott, and H. W. Bridges, enginemen and trainmen in charge of the engine which was-turned on the table on that date. They testified that 'the lock bar, which was a locking device to prevent said turntable- *367 from moving, was left in place by tbem when they turned the engine on said day. We are unable to find any testimony as to whether any other engine ’ had been turned in the interim. This would not change the decision in this case, because the witness John Chandler testified that the iron bar did not lock the turntable like a lock and key; that the children could shake the iron bar loose, and that every time they played on it, they did shake it loose; that they found the turntable in this condition that day; and that they did shake the lock bar loose on the ■day when Clara Chappell was hurt. His testimony shows that the lock bar was, in fact, not a secure fastening, but was simply used for the purpose of holding the track on the turntable in line with the track on the switch leading to the turntable, and that all the children had to do was to get on the turntable and shake this lock bar loose. We therefore overrule said assignment of error.