City of San Antonio v. Ramundo , 1966 Tex. App. LEXIS 2311 ( 1966 )

MURRAY, Chief Justice

(dissenting).

The majority have reversed and rendered the judgment of the trial court because the notice of injury furnished the City in an attempt to comply with Section 150 of the Charter of San Antonio was fatally defective.

Section 150 of the Charter of the City of San Antonio reads in part as follows:

“LIABILITY OF THE CITY AND LIMITATIONS THEREON. Before the City shall be liable for damages for the death or personal injuries of any person * * *, the person injured, * * * shall give the City Manager or the City Clerk notice in writing of such * * * injury * * * within ninety days after same has been sustained, stating in such written notice when, where and how the * * * injury * * * occurred, *

Appellee was injured on May 11, 1964, while a passenger on a bus operated by the City of San Antonio as a common carrier of passengers, and thereafter on July 22, 1964, appellee notified the City Manager and City Clerk of San Antonio in writing as follows :

“On May 11, 1964, Donato Ramundo was a passenger on one of the buses operated by the Transit Board of Trustees of San Antonio and the City of San Antonio. At about 7:30 A.M., at about the intersection of West Martin and North St. Mary’s Street, in the City of San Antonio, Mr. Ramundo was caused to fall in said bus when the driver started and then negligently and suddenly stopped the bus.

“In accordance with Section 150 of the Charter of the City of San Antonio we, as representatives of and attorneys for Mr. Ramundo, hereby give notice of said accident and injuries sustained by Mr. Ra-mundo.

“As a result of such accident, Mr. Ra-mundo sustained injuries to his head, back, right arm, leg and hand, neck and a compression fracture of T-12 vertebra. Mr. Ramundo is still under the care of his doctors and the full extent of his injuries and disabilities have not yet been determined. The best estimate that can be made at this time is that he has been damaged in excess of $10,000.00.”

On July 22, 1965, appellant filed its “FIRST AMENDED ORIGINAL ANSWER” containing the following allegations :

“ * * * That when the traffic signal turned to green, a ‘3-wheeler’ motorcycle of the type commonly used by the City of San Antonio Police Department and being driven by a City of San Antonio Policeman in the regular course of his duties started its forward movement and Mr. Harvey simultaneously started the forward movement of his bus. That at that time Mr. Ramundo was standing up in the aisle of the bus even though he did not intend to alight from the bus until it reached the next block. That for some reason unknown to the defendant, the policeman brought his motorcycle to a sudden and unexpected stop without giving any sign or signal of his intention so to do, creating an emergency, and causing Mr. Harvey to mash down on the brakes of his bus bringing the same to a sudden stop. That in so doing, Mr. Ra-mundo was thrown to the floor of the bus and another passenger, who had just gotten on the bus at Martin Street, was also thrown to the floor. * * *

“This defendant says that the action of the motorcycle policeman in bringing his motorcycle to a sudden stop without any type of signal or warning, causing the operator of the bus to quickly step on his brakes and bring the bus to a sudden stop was the sole proximate cause of the accident in question.” (Emphases mine.)

Appellee’s first witness was Arnold Harvey, who was the driver of the bus on the occasion in question, and his testimony was in support of the above allegations.

The jury found, among other things, that the policeman driving the three-wheeler motorcycle was proceeding in a southerly direction on St. Mary’s Street in front of the bus, and that the policeman suddenly stopped the motorcycle without signaling his intention to do so and this act was the sole proximate cause of the accident.

The majority have held that the notice given to appellant by appellee was fatally defective because it alleged that the accident was caused by the negligence of the bus driver in suddenly stopping the bus when, according to the verdict of the jury, the accident was caused by the sudden stopping by a policeman of his motorcycle in front of the bus, thus forcing the bus driver to mash his brakes and suddenly stop the bus.

The City does not deny that the bus was suddenly stopped and that appellee was thrown to the floor of the bus and injured, but does contend that the bus driver was not negligent as he was forced to make the sudden stop in order to prevent hitting the policeman and his motorcycle.

Appellee denied that there was a policeman in front of the bus which caused the sudden stop, but the jury believed the City’s bus driver who was seated high up in the front of the bus and in a much better position to see what was happening, and especially was this so after appellee had been thrown to the floor of the bus. The report of the bus driver shows that immediately after the accident he secured nine courtesy cards from people on the bus. This information is not furnished to the injured passenger. Ex parte Ladon, 160 Tex. 7, 325 S.W.2d 121. In fact, the entire record shows that the City, through its employees, was in a much better position to know how the accident happened than was appellee who was thrown to the floor of the bus and injured.

In my opinion the written notice furnished the City by appellee fully met the requirements of Section 150 of the City Charter. There is no question but that notice was given as to “where” and “when” the accident occurred, but the City contends it did not meet the requirement as to “how” it occurred. I think it does; it states in effect that the bus driver suddenly stopped the bus and caused Ramundo to fall to the floor. This is how the accident happened. The fact that the City was able to prove on the trial that it was not the negligence of the bus driver, but the negligence of another employee, that caused the accident is not sufficient to show a variance rendering the notice fatally defective.

The requirements of Section 150 of the City Charter are perfectly legal and unless appellee has complied therewith he has lost his claim against the City. ■

The majority say that “The purpose of notice provisions such as are before us 'is to advise the municipality in what the negligence consists * * ” Citing City of Waco v. Landingham, Tex.Civ.App., 158 S.W.2d 79, 80, writ ref. I do not agree. Different cities have various provisions as to notice of injuries. The notice required by the City Charter of Waco is so different from the notice required by the Charter of San Antonio that the above case is of no help in construing the provisions of Sec. 150 in the Charter of the City of San Antonio.

The requirement of the San Antonio Charter is that the notice must state, among other things, “when, where and how” the injury occurred. Appellee’s notice stated that the injury occurred about 7:30 A.M. on May 11, 1964, while Ramundo was a passenger on one of the buses operated by the Transit Board of Trustees of San Antonio and the City of San Antonio, at about the intersection of West Martin and North St. Mary’s Street in the City of San Antonio. This statement agrees exactly with the City bus driver’s report made to the City. As to “how” the injury occurred, the notice says: “Mr. Ramundo was caused to fall in said bus when the driver started and then negligently and suddenly stopped the bus.” This statement as to how the injury occurred also corresponds with the report of the bus driver, except the bus driver does not admit that he was negligent in stopping the bus suddenly because a City policeman, without giving notice or signal of his intention to do so, suddenly stopped his three-wheeler motorcycle in the path of the bus. In my opinion, as to whether the sudden stopping of the bus was the result of the negligence of the City’s bus driver or the negligence of the City’s policeman, the bus driver, seated high in the bus, charged with the duty of keeping a proper lookout, was in a better position to know what caused the sudden stopping of the bus than was Ramundo, especially after he was thrown to the floor of the bus and injured. Ramundo reported the accident as he saw it, and he told fully how it happened, and that meets the requirement of Section ISO of the Charter of the City of San Antonio.

The City of San Antonio had its driver seated high up in the front of the bus observing what was happening as it happened, and the City does not show that it was injured in any way by the failure of Ramundo to report the negligence of the City policeman, and that it did not have enough information to properly investigate the accident.

The provisions of Section 150 of the Charter while valid are against the common right and should be reasonably construed against the City. City of San Antonio v. Pfeiffer, Tex.Civ.App., 216 S.W. 207; City of Dallas v. Shows, Tex.Com.App., 212 S.W. 633.

To here hold that in order to show “how” an injury occurred a claimant must set out all of the acts of negligence relied on by him would add something to Section 150, rather than construe it reasonably strictly against the City.

The following cases are in point here: City of Abilene v. Fillmon, Tex.Civ.App., 342 S.W.2d 227; Werner v. City of Rochester, 77 Hun 33, 28 N.Y.S. 226. In Brolin v. City of Independence, 235 Mo.App. 360, 138 S.W.2d 741, the Court said:

“Defendant claims that the notice is insufficient in that it fails to state why plaintiff was traveling in the street at the time, instead of along the sidewalk adjacent thereto; that it fails to allege the defenctive condition of thé sidewalk. We think that, since the notice complies literally with the statute in its terms, such compliance was sufficient. To hold otherwise would be to require that the notice, to be good, must state all of the claimed negligence of defendant upon which plaintiff relies for recovery; that the notice must contain something more than the statute requires. But for the statute, defendant would not be entitled to any notice at all. We are unwilling to amend the statute, by judicial interpretation, and thereby read something into it which the legislature did not write into it. ‘While the circumstances of the injury are to be stated in the notice, the statute does not require the causes which produced the injury to be enumerated.’ McCartney v. City of Washington, 124 Iowa 382, 100 N.W. 80, loc. cit. 81. ‘Technical accuracy is not required, neither is it necessary to set out the particular negligence relied upon.’ City of Bessemer v. Barnett, 212 Ala. 202, loc. cit. 203, 102 So. 23, loc. cit. 25. The point is ruled against defendant.”

See also MaGee v. Jones County, 161 Iowa 296, 142 N.W. 957, 48 L.R.A.,N.S., 141; Forbes v. City of Omaha, 79 Neb. 6, 112 N.W. 326; McCartney v. City of Washington, 124 Iowa 382, 100 N.W. 80. Gonzales v. City of Corpus Christi, Tex.Civ.App., 323 S.W.2d 495, is not in point here. There the notice incorrectly stated “where” the injury happened. There are a number of “where” cases cited, but they shed very little light upon cases which involve “how” the injury occurred.

The notice given in this case stated exactly “how” the injury occurred, to-wit, by the bus stopping suddenly and throwing Ra-mundo to the floor of the bus and injuring him. The evidence shows that this is “how” he was injured, the only dispute is as to whether the negligence of the bus driver or the negligence of the policeman caused the bus to stop suddenly. Section 150 of the Charter does not require that the notice set forth the acts of negligence relied upon by the claimant.

I cannot agree that there was a fatal variance between the notice and the evidence at the trial. I would affirm the judgment.