City of Dallas v. Jones , 93 Tex. 38 ( 1899 )

This suit was brought by James G. Jones to recover damages for injuries sustained by his wife from falling into a ditch or hole in the sidewalk in said city. Jones having recovered judgment, the city appealed to the Court of Civil Appeals, which court having affirmed the judgment, the city has brought the cause to this court upon writ of error.

The first count in the petition stated the defendant's negligence substantially as follows: That the city filled up a natural drain at the point where a street crossed the same, and in providing an outlet for the water, which naturally came down such drain, so unskillfully constructed the same that it did not carry off large quantities of accumulated water, but allowed it to accumulate against the bank, causing it to constantly and repeatedly cave in and be unsafe and dangerous for travel; "that the street and sidewalk along said street was defectively and negligently constructed and graded and was left far above the natural drain below, and no guards were placed along same to protect passengers on said sidewalk, and that by reason of said defective construction of said sewer and said embankment and street and sidewalk, it repeatedly caved in, undermined, and washed away, leaving a large and deep hole along said sidewalk, and by reason of the acts of said city, became hazardous and dangerous to all passengers, of all of which defendant had due and legal notice." This count then proceeds to state that Mrs. Jones in passing along said sidewalk, without negligence upon her part, fell into said hole and was injured. The second count, after stating the condition of the street subsequent to the work done by the city in filling up the drain, alleges the defendant's negligence as follows: "That said city negligently and unskillfully filled up the street and placed a culvert or conduit for the water under said street, causing the water to flow against the embankment above and below and to loosen the embankment, causing the sidewalk on the east side of the street to cave in and form a hole eight or ten feet deep along said sidewalk; that along said sidewalk were placed, at the instance or with the consent of said defendant city, planks across said hole which were upturned and not securely fastened, leaving said sidewalk at said place insecure, hazardous, and dangerous, all of which was well known to defendant, and due notice of same was given to defendant more than ten days prior to the injury hereinafter stated." This count then proceeds to state that Mrs. Jones, in passing along said sidewalk, without fault on her part, fell over said sidewalk into the hole, whereby she was injured.

Mrs. Jones' mother, who was with her at the time of the accident, testified in regard to the occurrence as follows: "She was walking before me and we were talking. She fell into a hole in the sidewalk. * * * She was as careful as she could be at the time she was hurt, but the plank on which she was walking seemed to spring up. * * * The cause of Mrs. Jones falling was that the plank on which she was walking sprang up, and I was on one part of it and the other part of it tilted up and threw her down. There was something under the plank. There were two planks side by side and that ran across the hole into which she fell." Mrs. Jones stated the circumstances immediately connected with the accident as follows: "I came to Dallas in May, 1894. On the evening of the 28th of May, 1894, about half past 7 o'clock, I was walking with my mother, who had recently come to Dallas. We walked down to Harwood Street, and, as it was too dark to go to the park, we walked to the opposite side of Harwood Street and came back on the other side, and we walked on some planks, and the planks sprung up and threw me off. I was as careful as I could be." The other testimony in the case showed that there was a hole or ditch under the planks, made by the water, as stated in the petition, into which hole Mrs. Jones fell as stated in their testimony above. There was much testimony in regard to the condition of said hole or ditch in the sidewalk and the length of time it had been there, as well as to its dangerous character and as to the notice the city had of its existence prior to the accident. The defendant in its testimony claimed that it had filled up the hole about the 17th day of April, 1894. The court charged that if the jury so found, and if they should believe further that the city then used reasonable care to make the sidewalk reasonably safe for travel, and that thereafter it had no notice, actual or constructive, of the sidewalk becoming unsafe for travel, then they should find for defendant.

The court refused to give the following charge requested by defendant: "You are instructed that if you find that plaintiff's wife was injured by reason of the fact, if you find such to be the fact, that a plank over a hole in defendant's sidewalk was loose or warped and would not have occurred but for the fact that such plank was loose or warped, then before plaintiff can recover damages against defendant you must find from the evidence before you that defendant's officers, agents, or servants, or some of them, had actual notice that the same was loosened or warped, or that the same had been in such condition for such a length of time before said accident that by the use of reasonable diligence and care they could have known of said fact before said accident."

We are of opinion that the court erred in refusing to give this charge as being applicable to the second count of the petition and the evidence of Mrs. Jones and her mother as to what caused the accident. Under this count and their evidence, the jury might have found that the plank being loose was the sole cause of the accident, and if they had so found the city would not have been liable unless the notice referred to in the charge existed, and whether or not such notice existed was, to say the least, a disputed question of fact. In order to hold the city liable, the notice must have been shown in reference to the particular defect which caused the accident, and it would be wholly immaterial to show notice of any other. It is true the first count in the petition charges the negligence producing the injury to have consisted in leaving the hole in the sidewalk, and if the evidence justified a finding that the negligent leaving of the hole in the sidewalk caused the accident (as to which we express no opinion), then in recovering upon such count it would be necessary to show the notice with reference to the existence of such hole, but notice with reference thereto would not affect defendant's liability in any way unless it was at least one of the causes of the accident. The jury may have found that the plank being loose was the sole cause of the accident, though it may be conceded that the injuries of Mrs. Jones were greatly aggravated by the existence of the hole in the sidewalk. This would be true in every case where the city in the exercise of its discretion bridges over a ravine or ditch and subsequently a plank in the bridge becomes loose, whereby one is precipitated into the creek below. In such case the sole cause of the accident is the fact that the plank became loose.

We use the word cause in the sense of proximate cause. It will be observed that it is not charged in the petition nor did plaintiff attempt to prove that defendant was negligent in constructing an insufficient crossing over the hole. The specific negligence charged with reference to such crossing is that the planks constituting same were not fastened. City of Atchison v. Jansen, 21 Kan. 404; Hiner, Administrator, v. City, 71 Wis. 81. We think the city was entitled to the special charge applying the law to the particular facts of the case. Railway v. Sheider,88 Tex. 152; Railway v. McGlamory, 89 Tex. 639 [89 Tex. 639]. Judgment will be reversed and the cause remanded.

Opinion filed February 13, 1899.

ON REHEARING.