Imogene Driver v. Worth Construction Co. , 154 Tex. 66 ( 1954 )

Mr. Justice Smith

dissenting

This case was submitted to the jury upon 83 special issues. In answer to Special Issue No. 34, the jury convicted Boyd Driver, deceased, of contributory negligence in failing to travel on the old portion of Highway 183. The trial court entered judgment in favor of the respondent. Petitioners appealed to the Court of Civil Appeals and that court affirmed the judgment as to petitioner, Imogene Driver, and reversed and remanded the cause as to petitioner, Ira Siratt. The Court of Civil Appeals held Issue No. 34 was an ultimate and controlling issue and having answered against petitioner she could not recover.

The Court of Civil Appeals passed on three other points which were raised by the petitioner in that court. The remaining 39 points were not considered in any manner. These points involve the question which was not considered by the Court of Civil Appeals. The points not discussed or determined go directly to the question determined by the majority to be controlling. I am of the opinion that this court should reverse the cause on the question decided by the Court of Civil Appeals and remand it to that court for consideration by it of all the assignments not considered in its former opinion. McKenzie Construction Co. v. City of San Antonio, 131 Texas 474, 115 S.W. 2d 617; Inman v. St. Louis Southwestern Railway Co., Texas Com. App., 288 S.W. 150; Bowles v. Mitchell, Texas Com. App., 245 S.W. 74; Schroyer v. Chicago, R. I. & G. R. Co., 111 Texas 24, 222 S.W. 1095, 226 S.W. 140.

In the ease of McKenzie Construction Company v. City of San Antonio, supra, this court said:

“* * * Should we consider and overrule all assignments of which we have jurisdiction, we would still be required to remand the cause to the Court of Civil Appeals for a determination of those assignments over which we have no jurisdiction, and the result might be that that court would sustain one or more of such assignments and thereby render our labors futile. Under such a situation the practice has been established here of remanding the cause to the Court of Civil Appeals for consideration by it of all the assignments not considered by its former opinion.” When a Court of Civil Appeals pretermits the consideration of assignments other than those raising the one controlling question upon which its judgment rested and where this court reverses that court on the only question decided, this court should not preclude a determination of all these other assignments. Schroyer v. Chicago R.I. & G.R. Co., supra. The rule announced in the cited case is particularly applicable to the present case, in that, the Court of Civil Appeals did not pass upon petitioner’s assignment that there was no evidence to support the jury’s answer to Special Issue No. 1. The petitioner was only required to present points in this court which were passed upon by the Court of Civil Appeals. That is the course petitioner followed. He did not present a point of “no evidence” to support the answer of the jury to Special Issue No. 1 or any of the other issues discussed in the majority opinion, except the three mentioned above. These three points only dealt with questions of improper cross-examination of a witness, and the admissibility of photographs and certain testimony of the witness, Cummings. The question of “no evidence” has not been briefed in this court. This Court should not affirm the judgment of the Court of Civil Appeals on a theory or question not passed upon by that court. The petitioner perfected her appeal to the Court of Civil Appeals and is entitled as of right and under the law to have all assignments considered and disposed of by that court. I see no justification or plausible reason why this case should be made an exception to the established rule announced in the above well con-considered cases by this court.

I do not agree with the majority disposition of the question of the admissibility of the testimony of the witness, Welton Cummings. The Court of Civil Appeals overruled the assignment presented by petitioner that the trial court erred in permitting the witness, Welton Cummings, to testify over objection that the State Highway Department inspected the construction job for flares, barricades and signs and found the same were sufficient.

It is my opinion that the improper testimony hereinafter set out influenced the jury to answer Special Issue No. 1 to the effect that respondent did not fail to have a barricade on the new concrete highway sufficient to prevent the traveling public from entering upon such highway. The petitioner first objected to the testimony by merely stating “We object to that.” This was followed by the additional objection: “Does the court understand we have our objection to this entire line of testimony as being irrelevant and immaterial and cannot prove or disprove and would attempt to substitute the advice and counsel of other parties other than will be submitted to the jury by the court?” The court replied: “Yes, sir.” The petitioner then requested the court to “note our exception to each and every question to the court’s ruling.” The objection was sufficient and should have been sustained.

Respondent had previously called a witness, W. A. Woody, who was construction inspector for the State Highway Department, and attempted to elicit the same evidence from him. The petitioner’s objections were sustained. The witness, Welton Cummings, was permitted, over objection, to testify as follows:

“Q. In putting your barricades and in placing your warning signs do you have any supervision from the State Highway Department?

“A. We do.

“Q. Does the State Highway Department have an inspector on the job during the whole time you are carrying on the project?

(Objection — overruled)

“Q. Does the State Highway Department have an inspector?

“A. Plenty, Yes, sir.

“Q. Do they make inspections from day to day?

“A. Yes, sir.

“Q. Do they make inspections with reference to barricades and flares and signs?

“A. They do.

“Q. Do they make such inspections?

“A. They do.

(Objection — overruled)

“Q. Does the State Highway Department have a resident engineer on the job?

“A. Yes, sir.

“Q. Did he make inspections from day to day?

“A. Yes, sir.

“Q. Did he make inspections with reference to existing barricades and flares and warning signs?

“A. He did.

“Q. Do they have anybody besides a resident engineer and an inspector who has anything to do with making those inspections?

(Ob j ection — overruled)

“Q. Did the State Highway Department at that time have anyone other than the inspector and the resident engineer?

“A. The inspectors and the engineer.

“Q. What?

“A. Inspectors, not just one.

• “Q. Not just one. How many of them were on that job out there?

“A. Oh, there were six or eight.

“Q. Six or eight. From time to time in carrying on jobs do inspectors and resident engineers call your attention to corrections they desire with reference to signs, barricades, or flares?

“A. Yes, sir.

“Q. Have you ever had your attention called with reference to any correction at Merritt Street?

“A. No, sir.

“Q. Had the State Highway Department made any complaint at all about the Merrit Street.intersection?

“A. No, sir.”

The testimony as set out above could have served no other purpose than to show to the jury that the signs were regarded as sufficient by Mr. Woody, the State Highway Department inspector, and to cause the jury to believe that there was no negligence on the respondent’s part by reason thereof.

In this connection, the testimony as to the barricade at Merrit Street amounts to no evidence that a barricade was present at Merrit Street sufficient to prevent the traveling public from entering upon the new highway. The new highway was 24 feet wide. The barricade was 12 feet in length. One witness testified the barricade was in the middle of the highway, but admitted on cross-examination that it could have been farther to one side. Two officers testified that a barricade was situated

down the new highway from Merritt Street (the distance varies) and that only 9 feet of the barricade extended over the highway. In this state of the record, I can think of no greater damaging testimony than to permit a witness to relate that the inspector for the State Highway Department inspected the barricades daily and had never made any complaint about the Merritt Street intersection. The jury no doubt concluded from this tesimony that the barricade was sufficient; otherwise, the inspector would have registered an objection. A witness can testify as to actual facts as they existed, but he is not allowed to give his conclusion. The issue as to- the sufficiency of the barricade was for the jury to pass upon. It would have been proper for the witness to testify as to how the barricade was constructed and where it was placed, but to allow him to state that the Highway Department regarded it to be sufficient invaded the province of the jury and permitted the witness to determine the issue the jury was called upon to answer. The testimony was inadmissible and highly prejudicial and admitted in violation of well established rules of evidence. Every litigant is entitled to have the issues determined by a jury, and the verdict should be passed on competent evidence. One of the important functions of the trial court is to safeguard the rights of the parties in this respect. Because of the prejudicial error in admitting the above testimony this cause should be reversed and remanded to the trial court for a new trial.

I still contend that this Court should not pass upon the question of the duty respondent owed the deceased, Mr. Driver, and the question of whether or not the evidence supports the answer of the jury to Special Issue No. 1, but, in view of the opinion of the majority, I insist that there is no competent evidence in this record to support the finding of the jury that the barricade was sufficient to warn the traveling public. The majority opinion does not, in exact language, classify the deceased as an invitee, licensee or trespasser, but, in my opinion, the effect of the holding is to classify him as a trespasser. I think the doctrine of trespasser should not apply in view of the record in this case. This Court should hold, if it holds anything, that the contractor owed a duty to exercise ordinary care to keep the premises safe for the use of members of the public coming thereon in good faith by invitation, either expressed or implied. If the deceased, Mr. Driver, acted in good faith, and not on mere pretense, he had the right to be on the new concrete highway on the occasion in question and was entitled to receive the protection of ordinary care. Kalium v. Wheeler, 129 Texas 74, 101 S.W. 2d 225. What were the facts going to show that he acted in good faith in entering the new highway at Merrit Street? Merritt Street had been opened to the public before the date of the accident; the new concrete highway was being used admittedly by men working down near the Ohio Garden Street intersection; automobile trucks were visible on the new highway at the Merritt Street intersection. (Certainly no one could tell whether the tracks were made by cars driven by employees or the traveling public.) There was no sign at Merritt Street warning the public not to use the new highway. To the contrary, there was a sign which advised the public “Highway Construction — Drive Carefully.” Incidentally, the jury found that Driver complied with the admonition to drive carefully. The so-called barricade was situated down the new highway from Merritt Street and towards Ohio Garden Street, a distance of from 5 to 10 feet. It was over on one side of the highway. The new highway had been completed to Merritt Street and beyond. No work on the concrete slab was being done on the strip between Merritt and Ohio Garden Streets. The place of danger was at the Ohio Garden Street intersection approximately 800 feet from Merritt Street. The new highway was situated parallel with old highway No. 183 with a strip of land between the two highways. I think the following rule applies in the case: “Where a street is so constructed or altered as to present at one point two paths, both of which exhibit the appearance of having been used by travelers, and one of them leads to a dangerous place, while the other is safe for travel, it is the duty of the city to indicate, in a manner not to be mistaken by day or by night, that the unsafe path is to be avoided; and, if it cannot be otherwise done, to put up such an obstruction as will turn the traveler from the wrong track.” Rivero v. New York, 290 N. Y. 204, 48 N.E. 2d 486, 488, 14 N. C. C. A. N.S. 724.

The new highway had the apearance of being open to the traveling public at its intersection with Merritt Street. As heretofore said, the work was actually being done a distance of 800 feet from that intersection. Under such circumstances, I think the rule, as stated in City of Terrell v. Howard, Texas Civ. App., 85 S.W. 2d 283, 289, reversed on another point, 130 Texas 459, 111 S.W. 2d 692, applies:

“It is well-settled law in this state that a municipality ‘is required to exercise ordinary or reasonable care to maintain its streets and sidewalks in a reasonable safe condition for travel by those using them in a proper manner. The duty of ordinary or' reasonable care which the municipality owes to persons entitled to protection as travelers is a continuing duty, which is not suspended while the street is being repaired’.” (Emphasis added).

The doctrine of trespasser-licensee-invitee is not really the one applicable to this case but from this doctrine has arisen one pertaining to highway construction and repair to the effect that in constructing or repairing a street or highway the contractor owes a duty to the public to close the street or highway or otherwise adequately warn the traveler that it was not open to the public. The jury in the present case found the respondent was negligent in failing to have a barricade at the Ohio Garden Street intersection. If the highway was not properly closed, or if proper warning was not given at the Merritt Street intersection, then it was the duty of respondent to barricade Ohio Garden Street. This doctrine is recognized in Shuford v. City of Dallas, 144 Texas 342, 190 S.W. 2d 721. The question resolves itself into one of whether the respondent had properly inclosed the roadway or otherwise warned the petitioner that the roadway was not open to the public. The question is one determining duty and therefore petitioner had the burden of proving that the roadway was not properly inclosed or proper warning given and in requesting proper special issues on the question.

In addition to alleging negligence on the part of respondent in failing to barricade Ohio Garden Street, the petitioner alleged acts of negligence in failing to give adequate warning at Merritt Street. Special Issues Nos. 1, 4, 8 and 11 submitted respectively whether respondent failed to have a barricade, signs and flares at Merritt Street sufficient to give notice that the highway was closed and whether' respondent was negligent in not having a flagman or watchman there. All of these issues were answered in the negative. The answers to these issues do not constitute a finding that the road was properly barricaded since the issues submit specific instances of failure to warn and none of them singularly or collectively could constitute a finding that there was or was not sufficient warning that the road was closed; i.e., the jury could have found that the barricade was not sufficient to warn but this would not mean that there was not sufficient warning since a sign or a flare by itself could be sufficient. Or they could have found that all were insufficient and yet there might have been some other sufficient means of warning. Likewise, a negative finding to Special Issue No. 1 does not mean that the barricade did sufficiently warn since that would only show that petitioner had failed to sustain his burden of proof.

It follows from this that petitioner has tried his case on the wrong theory. He should have requested an issue inquiring of the jury whether the respondent had properly inclosed the road or otherwise sufficiently warned the petitioner that the road was not open to the public. Without such a finding the petitioner is not entitled to recover since he has the burden of proving that respondent owed him a duty to barricade Ohio Garden Street. Respondent did not owe petitioner this duty unless he had failed to properly inclose the new highway at Merritt Street. Whether the road was properly inclosed cannot be determined as a matter of law and so it should have been submitted to the jury by special issue.

Since the majority has reversed the trial court and the Court of Civil Appeals this cause should be remanded to the trial court for a new trial. Rule 505, Texas Rules of Civil Procedure. As said by this Court in the case of Hicks v. Matthews, 153 Texas 177, 266 S.W. 2d 846, “this court, * * * should remand the case for another trial ‘if it shall appear that the justice of the case demands another trial.’ Rule 505, T. R. C. P. This court exercises a wide discretion in determining whether it should render final judgment here or remand the case for another trial. The fact that a peremptory instruction would have been justified does not necessarily mean that the cause should not be remanded to the trial court. Associated Oil Co. v. Hart, Texas Com. App., 277 S.W. 1043 * * * * *. Such remanding has often been ordered to supply additional testimony, to amend the pleadings, and even to show jurisdiction.”

It is true this case has been remanded to the Court of Civil Appeals; however, it is my position that the justice of this case demands that it be remanded to the trial court for a new trial.

Delivered December 15, 1954.

Rehearing overruled January 12, 1955.