City of Dallas v. Shuford

In this, a damage action against the municipality, charging negligence while engaged in a corporate function, claimant cannot be held negligent as a matter of law when the jury has found that she had no previous knowledge of the sidewalk obstruction causing the injury, and that she was exercising a proper lookout in the darkness.

The principle applied by the majority whereby an injured person is deemed negligent as a matter of law is limited to cases of an open and obvious defect or obstruction, with full knowledge of the risk incident to using the way. Referring to the Missouri decision, cited in majority opinion, Baranovic (342 Mo. 322, 114 S.W.2d 1043, supra) knew the barricades were there and lighted; but, the street being downgrade and muddy, an accident resulted from sudden application of his car brakes and skidding; in Sheffer v. Schmidt, plaintiff had been over the highway before and knew of the obstruction and that he must detour, but on his own admission failed to have his car under control; in Waldmann's appeal plaintiff was fully aware of the obstruction by having traversed it several hours before in daytime, but was injured at night on return trip; in the Wheat case claimant knew of the street defect, having driven by it for a year, but on his own testimony was not looking at all; in Welch v. McGowan, the time was daylight, plaintiff knowing of the street condition and barricades, but at time of injury was maintaining no lookout whatever; and in Rohmann v. City of Richmond Heights, the defective condition was in plain view, the general rule being applied that as a matter of law plaintiff had failed to exercise his faculties to discover and avoid obvious dangers.

But surely we have no such case here. Exline Street proper seems to have been in a state of disrepair for sometime prior to April 5, date of injury; Gus Crowley, City construction foreman, testifying that he had finished the curbs and gutters on Exline beginning at Crozier to the West, March 5, working back on sidewalk construction, having gotten to Myrtle Street, but not to the block including 2734 Exline on April 5; that his gang had left no dirt in front of plaintiff's residence, the surplus from previous excavations having already been hauled away; and that upon complaint being made of the dirt pile after the injury, he had sent an employe down and removed it — about a wheelbarrow full. The jury could have attributed the offending dirt and rocks to a shifting of plaintiff's meter by the water department from under her sidewalk to another place some days before; finding, in substance, that plaintiff's fall was proximately caused by the city's failure to use reasonable care in maintaining said sidewalk and parkway in a reasonably safe condition at the time; that the dirt in question was placed by defendant at the end of said walkway, negligently failing to place a guardrail, light or signal around the pile; that plaintiff did not know of said sidewalk condition or that same was under construction, and was in the exercise of a proper lookout for her own safety.

I have found no case and have been cited to none that holds a complainant negligent as a matter of law in the situation thus presented. On the other hand, fact issues are clearly raised for the jury's determination. Impliedly, at least, this fact-finding body has determined that plaintiff's failure to turn on her porch light was not negligence in fact; and yet the majority disregards the jury findings and invades their province by holding that plaintiff's failure to actually discover an unknown danger by use of porch light, in turn demonstrates a failure on her part to "exercise any care whatever for her own safety." The true rule (not applicable here) is observed in Butler v. City of University City, Mo. App., 167 S.W.2d 442, 443, quoting from Syl. 11: "For pedestrian to be contributorily negligent as a matter of law in falling on a defective sidewalk, pedestrian must have had knowledge of the defect and an appreciation of the unreasonable risk involved and have been inattentive, or the defect and its danger must have been sufficiently obvious to have unmistakenly challenged pedestrian's attention had she used due care."

Texas courts uniformly hold that even knowledge by the traveler of a street or sidewalk obstruction is not conclusive of negligence. The question of contributory negligence thus raised is one for the jury under circumstances of the particular case; Gulf, C. S. F. R. Co. v. Gascamp,69 Tex. 545, 7 S.W. 227; City of Denison v. Sanford, 2 Tex. Civ. App. 661,21 S.W. 784; Butler v. City of Conroe, Tex.Civ.App. 218 S.W. 557. Use of a highway, though known to be dangerous, is not negligence per se. Marshall E. T. R. Co. v. Petty, 107 Tex. 387, 180 S.W. 105, L.R.A. 1918A, 192. Note also 39 T.J., Streets, Sec. 128, pp. 703, 704, and footnote of cases holding: "But the fact that a person knows or might have known that a street or sidewalk was defective or in a dangerous condition does not necessarily impose upon him the duty of refraining from travelling thereon, or charge him as a matter of law with contributory negligence in using the way — even at night; * * * Nor does the mere fact that a pedestrian temporarily forgets an obstruction across a sidewalk convict him of contributory negligence as a matter of law." And quoting from 43 C.J., p. 1082: "The mere fact that one using a street or public way had knowledge of the defect or obstruction by reason of which he was injured does not, as a matter of law, constitute contributory negligence precluding a recovery, if in view of such knowledge he exercised reasonable and ordinary care under the circumstances." (P. 1086) "A traveller is not precluded from recovery because he knew of the defect or obstruction, where his knowledge was remote, or imperfect, or insufficient to give a full appreciation of the danger, as where he knew of the generally defective condition of the way, but had no knowledge of the particulardefect which caused the injury." (Italics mine.)

Likewise the majority holds (if necessary to a disposition) that defendant was not negligent in law, the reason inferentially being that (1) the City's duty to maintain the way in a reasonably safe condition for use by the public was necessarily suspended during progress of public work; and (2) the presence of said dirt pile was as strong a notice of danger as a signal light or guardrail would have been, rendering the latter precautions on part of defendant immaterial. Bearing in mind that plaintiff's knowledge extended only to the street work in progress, and not to the commencing of sidewalk construction and existence of the dirt at end of her lead walk (as found by the jury) I respectfully dissent from above conclusions, as not applicable to the record facts, because:

First, at the time, Exline Street in plaintiff's residence block was apparently not closed; to the contrary was accessible to the public. There is no "suspension" of municipal responsibility for injury on a street or sidewalk, though under repair or construction, unless the way be barricaded or otherwise closed to public use. See Myers v. City of Louisville, 274 Ky. 764, 120 S.W.2d 221, 119 A.L.R 837, and annotations beginning page 841. "According to the weight of authority, the duty of public authorities to keep highways reasonably safe for travel is not abrogated or suspended by the fact that the highway is being repaired. If it is left open to public travel the controlling authority must exercise ordinary care and take reasonable precautions to prevent injuries to travelers thereon." 25 Am.Jur., Sec. 400, pp. 697, 698.

Second, as to the argument that the dirt pile of itself was ample notice, I can only reiterate that the injury occurred at nighttime, and though plaintiff knew of the street construction, she did not know that same had extended to her sidewalk and parkway.

In brief, the common-law rule of ordinary care being applicable to plaintiff and defendant municipality alike on the occasion in question, City of Port Arthur v. Wallace, 141 Tex. 201, 171 S.W.2d 480, I insist that all issues here raised were for the jury's determination. In contrast, the majority rules that appellant had no cause of action ab initio.

This is not such a case as admits of only one conclusion concerning plaintiff's negligence and defendant's nonliability, and the resulting jury submission was proper. Their answers having support in competent testimony, the judgment under discussion should be affirmed.