Torres v. Wirshing & Co., S. en C.
Torres v. Wirshing & Co., S. en C.
Opinion of the Court
delivered the opinion of the Court.
Dominga Torres, assisted by her husband, Tomás Santana, filed suit against Wirshing & Co. S. en C., and U. S. Fidelity and Guaranty Co. in the Superior Court for damages by virtue of the death of Inés Laboy Torres, the
There is no dispute as to the facts. At the time of the accident, Wirshing & Co. operated sugar cane farms known as Colonia Restaurada on which various houses for its employees were located. The plaintiff lived in one of these houses with her children, including Inés.
At about 2.30 p. m. on June 11, 1951 HeribertO Ortiz, employed by Wirshing and Co. to cut fodder and haul it by oxcart to a corral where the oxen were kept on its property, unyoked the oxen and left the empty cart standing in its customary place outside the corral. The oxcart has two wheels and a long tongue. At the end of the tongue there is a yoke which fits on the head of the oxen. In order to rest the latter when the cart is not in motion, a pole is let down to the ground. The weight of the load in the cart is supported by this pole which is attached to the tongue by a revolving ring. The pole is called “el niño”. When the cart is used, the “niño” is hauled up into its place by a short length of rope.
Ortiz testified that he was ordered by his employer always to rest the tongue of the cart on the ground when he unyoked the oxen, and that he had done so on the day of the accident. However, the Superior Court found that on the day in question the cart was in its customary place with the tongue propped up in a horizontal position, supported by the “niño”.
The plaintiff contends that the trial court erred in finding that the oxcart was not an attractive nuisance and that the accident was not due to the negligence of the defendant employer.
The trial court found that the children living within Colonia Restaurada were accustomed to getting into these oxcarts and to play in them. If, as we have assumed, Ortiz left the cart with the tongue propped up in a horizontal position and supported by the “niño”, a child jumping and playing inside the cart might be unaware of the danger and be injured. Under these circumstances, the defendants
The result we have reached makes it unnecessary for ns to determine whether we would adopt “the playground rule” in this jurisdiction. Cf. Gatlinburg Const. Co. v. McKinney, 263 S.W. 2d 765 (Tenn., 1953); Williams v. Town of Morristown, 222 SAY. 2d 607 (Tenn., 1949); Hogan v. Etna Concrete Block Co., 188 Atl. 763 (Pa., 1937); Fitzpatrick v. Penfield, 109 Atl. 653 (Pa., 1920); McGill v. United States, 200 F. 2d 873 (C. A. 3, 1953); James, Inroads on Old Tort Concepts, 14 NACCA L. J. 226, 229-230; 14 id. 285; 65 C.J.S. § 40, pp. 505-7.
Once the issue of attractive nuisance is eliminated from the case, we fail to find any act of negligence attributable to the defendant employer on which a judgment for the plaintiff could be based.
The judgment of the Superior Court will be affirmed.
For reasons hereinafter noted, we assume that Ortiz left the tongue propped up in this manner instead of resting on the ground. The only purpose of so leaving it would be to make it easier for Ortiz on the following morning to yoke the oxen to the cart without having to bother to lift up the tongue. The testimony was that it was too heavy for a child — but not for a man — to lift. In any event, as already noted, we assume that Ortiz left the tongue propped up in a horizontal position.
The only testimony as to how the accident occurred was given by Gladys Esther Torres, 12 years of age, who accompanied Inés to the faucet. She stated that “. . . when she pushed against the cart, the ‘niño’ fell, she fell on the other side . . . and the ‘niño’ fell on her.”
This is quite different from the allegation of the complaint that Inés might have used the tongue as a trapeze. And, as noted in the opinion, the accident occurred in a manner which had no relation to the danger involved in the custom of the children to jump and play inside the cart with the tongue in a propped-up position.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.