On Rehearing.
Appellants have not assigned error against our construction of Rule No. SO, but insist that the following propositions should be reviewed as presenting fundamental error.
First. On the ground that tbe permanent injunction awarded appellee by tbe judgment of the lower court has no support in bis .prayer, appellants say: “Tbe trial court was entirely without jurisdiction to grant tbe permanent injunction.” Tbe prayer was as follows, which fully supports tbe judgment of tbe lower court: “Wherefore plaintiff prays for writ of injunction against tbe defendants, that tbe defendant, Nacogdoches Independent School District be enjoined and restrained from drawing out tbe funds as needed to pay for said fence, and that they be prohibited from carrying out said contract as is heretofore alleged, and that tbe defendant, Cyclone Fence Company, be enjoined from further erecting of said fence around said campus as aforesaid; that defendant be cited to answer tbis petition and that on final bearing said injunction be made perpetual and that plaintiff have judgment for general relief and for costs of suit and for such other and further relief as be may be entitled.”
Second. Appellants now suggest an additional proposition of fundamental error on tbe theory that appellee did not plead facts raising tbe issue that tbe construction of the fence would constitute a dangerous condition for bis child and for the other children similarly situated. On tbis issue appellee pleaded as follows: “That said school campus is surrounded on tbe north, south, east and west by streets of tbe City of Nacogdoches, and that on all sides there are many homes from which children go to said school campus, and that as it is now, the automobile traffic is fast and furious over and along said streets; and that as it now is, the plaintiff’s child with others can reach the school campus and go to the buildings from any direction and without being forced to travel down said streets distances of from 100 to 200 feet before having an entrance to said campus; that there are with the plaintiff’s child hundreds and hundreds of children that attend said schools on said campus and that for the protection of the plaintiff’s child and those that attend with him said schools it is for the plaintiff’s child’s safety as well as others that they be given the opportunity to enter on said campus as quickly as possible and avoid the chances of coming in contact with the rapid transit of modern day traffic on all the streets of Nacogdoches.”
This paragraph is followed by allegations describing the fence and the plans and specifications under which it was to be built. In this connection it was alleged that “the circuit of said school campus” was 4,200 feet, that only seven gates were to be built in the fence. The petition also contained the following additional allegations of danger to the school children: “That if said fence be built there is now left a space between where the fence would be built and the street outside of said fence six or eight feet in width and .that the plaintiff’s child with those coming from the northwest to enter said campus if fence were built would be caused to walk down Fredonia Street a distance of 600 feet or down Hughes Avenue 450 feet before entrance could be had to said campus for any purposes; those coming from the northeast to the school would be compelled to travel Hughes Avenue 450 feet or down Mound Street 600 feet to the entrance to said campus ; those coming from the southeast would be compelled to travel along Mound Street for a distance of 600 feet to the entrance or down Arnold Street 450 feet to said entrances; that Hughes, Mound, Arnold, and North Fre-donia are prominent Streets in the City of Nacogdoches and are traveled by thousands and thousands of automobiles during twelve months, and that the attendance for the Na-cogdoches Public Schools and especially that attendance of the central, grammar, and high schools is believed by the plaintiff to be from 1200 to 1500 pupils, one of which is the child of the plaintiff; and that this number will attend said school during the year 1930 and 1931. * ⅜ That the fence would congregate, force down the streets as aforesaid the plaintiff’s child with others along the streets hemmed in by said fence for the distance as aforesaid, and a probability of the. gate’s being locked and the children’s being congregated on the congested streets as aforesaid; that the children, when released from school at noon and in the afternoon, would be forced to make exit from said campus in the several openings as aforesaid and will imperil and endanger the life of plaintiff’s child with others in that emerging from the gates the plaintiff’s child is within 6 or 8 feet *571of the highly congested streets as aforesaid and makes the same dangerous to the plaintiff’s child and others with him, thereby endangering and keeping in fear plaintiff and his wife of the danger of plaintiff’s child’s being run over and killed in the congested streets as aforesaid.” It was further alleged that without the fence the conditions complained of do not exist. These allegations were sufficient to raise the issue submitted to the jury by question No. 2, as given in the original opinion.
Third. Appellants erroneously insist that to create a dangerous condition appellee should have alleged: “That the trustees were building a ‘pitfall’ in which students might fall and kill -themselves in going to and returning from school, or while at school, or that the proposed fence possessed daggers or spears -that might kill some of the students that might come in contact with it, or because of its peculiar attractiveness it would specially attract the students to it in such a way as to seriously injure their bodies or minds or that in some other way the fence would injure health or life or limb.”
Fourth. Answering appellants’ proposition .that the judgment is fundamentally erroneous because we have filed no findings of fact in support thereof, we adopt question No. 2 and the jury’s answer thereto as our conclusion of fact on the issue now under discussion. .As this finding has not been attacked by a proposition that we can consider, it is binding both upon us and upon appellants.
Being in doubt as to the extent of our holding, appellants say that the opinion “ought to be clear enough so that litigants may finally dispose of it at second trial.” Complying with this request, it is our conclusion that the only issue pleaded by appellee sufficient in law to sustain a permanent injunction against the building of the fence was, to quote from the jury’s verdict, that it would “make it more dangerous for the plaintiff’s child in attending school.” All other issues pleaded by appellee in the petition now before us were subject to appellants’ general demurrer. Thus, that the building of the fence would damage appellee’s property and detract from the value of the Old Stone Fort as a historic relic, and that the trustees were without authority to expend the school funds for the purpose of erecting the fence, did not constitute a cause of action. As against these allegations the building of the fence was not an unlawful exercise of the discretion vested -by law in the board of trustees in managing-the schools of Nacogdoches independent school district.
The motion for rehearing is overruled.