City of Dallas v. Maxwell

• Decision Date: 07 March 1923
• Docket Number: (No. 325-3676.)
• Citation: 248 S.W. 667
• Parties: CITY OF DALLAS v. MAXWELL et ux.
• Court: Texas Supreme Court

248 S.W. 667

CITY OF DALLAS v. MAXWELL et ux.

(No. 325-3676.)

Commission of Appeals of Texas, Section B

March 7, 1923.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Suit by B. G. Maxwell and wife against the City of Dallas. From a judgment of the Court of Civil Appeals (231 S. W. 429) affirming a judgment for plaintiffs, defendant brings error. Reversed and rendered.

Jas. J. Collins, Allen Charlton, W. S. Bramlett, and Carl B. Callaway, all of Dallas, and Chas. L. Black, of Austin, for plaintiff in error.

McCutcheon & Church, of Dallas, and W. D. Cardwell, of Burkburnette, for defendants in error.

McCLENDON, P. J.

About 6:30 o'clock p. m. on December 19, 1916, a jitney car in which Mrs. Laura Maxwell and others were passengers, and which was traveling in a south or southwesterly direction on Carlisle street, in the City of Dallas, became unmanageable by reason of some defect in the steering gear, turned to the right across the sidewalk, and plunged into a deep ravine. One of the passengers was killed, and Mrs. Maxwell was seriously injured. This suit was brought by Mrs. Maxwell and her husband against the city to recover compensatory damages for Mrs. Maxwell's injuries; it being alleged that the city was negligent in not providing a barrier to prevent automobiles and other vehicles from falling into the ravine. The case was tried twice. On the first appeal it was remanded for new trial for error in the charge. (Tex. Civ. App.) 210 S. W. 725. The second trial was to a jury upon special issues; the jury finding, in addition to the amount of damages, in substance the following: (1) That the city's failure to have a "sufficient and adequate guard or barrier along the north or northwest line of Carlisle street at the place and time of the accident" was negligence; (2) that such negligence was the proximate cause of the injuries complained of; (3) that the jitney driver was negligent in operating the car; (4) that the steering gear of the car was defective, and the driver could not control or guide it; (5) that such negligence was not the sole proximate cause of the accident; (6) that the city's negligence, concurrently with that of the driver, was the proximate cause of the accident; and (7) that Mrs. Maxwell did not fully understand or appreciate the dangers incident to vehicular traffic on Carlisle street. Upon this verdict the trial court rendered judgment for plaintiffs, which was affirmed by the Court of Civil Appeals. 231 S. W. 429.

The accident occurred at the intersection of Carlisle and Vine streets. The south line of the latter forms a right angle with the east and west line of the former, while the east line of Vine street makes a slight angle with Carlisle street, so that in traveling south or southwest on the latter there is a slight curve to the right or west at the west line of Vine street. Vine street, although platted, appears never to have been used as a street, north of Carlisle, and is taken up entirely by a deep ravine. Formerly there was a bridge across this ravine; but some three or four years before the accident the city removed this bridge, placed a cement culvert or storm sewer at the bottom of the ravine, and filled in above it. Carlisle street was 50 feet wide between property lines, and had a sidewalk on either side about 5 feet wide, leaving about 40 feet of roadway in the center. This roadway was macadamized, surfaced with gravel, and was in good condition for travel by motor and other vehicles. On the west side of Carlisle street there were concrete curbings and cement footpaths up to the north and south lines of Vine street, leaving a break of about 50 feet with no curbing or cement walk. A board walk some 2 or three feet wide had been constructed to connect the cement walks. A few feet south of the end of the curbing at the north of Vine street was a light or telephone pole, which stood slightly west of the line of the curbing extended south. The board walk was west of the pole, and west of the board walk the ground sloped off rapidly, terminating in a 9-foot perpendicular retaining wall. The bottom of the ravine was some 40 or 50 feet lower than the surface of the street. There was some conflict in the evidence as to whether the sidewalk space across which the board walk extended was on a level with or slightly elevated above the gutter or drain adjoining the roadway; some of the witnesses testifying there was no elevation, while others, including Mr. Maxwell, gave an elevation of a few inches. This seems to be borne out by photographs introduced by plaintiff, which also clearly indicate that the ground west of the board walk began to slope at about where the property line would be, leaving about the usual 5 feet of sidewalk space to the curb line. The traveled part of the roadway began a foot or more from the curbing, thus leaving a space of 6 or more feet between the traveled part of the road and the point of danger. No character of guard or barrier had been constructed to prevent those using the street from precipitation down the incline and into the ravine. About 300 feet north of Vine street Carlisle intersects Sneed street. The jitney driver was traveling south on the west side of Carlisle street. He was familiar with the road, and had traveled it many times daily on his regular route for about a month. Mrs. Maxwell and a lady companion boarded the car as passengers at Sneed street. They occupied the rear seat, Mrs. Maxwell being on the left. The driver was on the left side of the front seat, and by his side was another passenger. When the car neared the north line of Vine street, it veered to the right, struck the telephone pole, went around it, crossed the board walk, and plunged down the embankment to the bottom of the ravine. There is no material controversy as to the manner in which the accident happened. A fair presentation of it is given in the following extracts from the driver's testimony:

`I recall an accident at Carlisle and Vine streets on December 9, 1916, that was about 6:30 o'clock in the evening. I was traveling in a southwestern direction. I was coming to town on Carlisle just prior to this accident. The jitney at the time—there was a little boy in the front seat with me. * * * That car, the steering wheel or steering gear was on the left side, and I was seated in the left side of the front seat, and the boy was seated on the right side by me, in the front seat. That was a five-passenger Ford. Then besides the boy and I there was in the car, I found out later, Mrs. Holford and Mrs. Maxwell. * * * My automobile had a top on it at that time and I had side curtains. The top was up and the curtains half up; the curtains were up to the back seat where the ladies sat. * * * As to how fast I was running between Sneed street and Vine street just before this accident, I can't tell just how fast I was running, but I know I wasn't running very fast; I don't think I could have been possibly been making over 8 or 10 miles an hour—not over 8 miles or 10. From my experience of a motorbus or jitney I am familiar with the speed of such vehicles. In my opinion, between Vine and Sneed streets before this accident occurred I do not think I was going over 8 miles, if that much. * * * When I stopped and the ladies got in, one of the ladies, I don't know which one, one said, `Let's fasten up these curtains; it is cold.' Well, I didn't think it had been cold enough to put up the curtains, and that is the reason I had them fixed up so they would protect the passengers in the back seat, just the front part coming up; so I reached back — I just reached back that way with my left hand; my right hand, when I reached back with my left hand, was on the steering wheel, and I was sitting just like I am now and reached back that way. I was sitting just like I am now and reached back that way. I was sitting with my face straight ahead, looking straight ahead on the street. I don't think I ever turned in the seat, but I just reached back and gave the curtains a jerk, and I saw it was not fastened in some way, and the lady said, `I will fasten this,' and I says, `All right.' Well, I seen that my car had cut—cut to the right some. I don't know how it was, but it seemed like it wanted to go to the right all the time, and I tried to cut it to the left and couldn't; and about that time I seen the pole, and it hit the pole in some way, I don't know just how it hit the pole, and then it sorter seemed like it was going the other way, it seemed like it sorter turned a little, and all at once it just turned, and I seen where that ditch was, and I grabbed the emergency and tried to stop the car, but couldn't, and we went off then. It seemed like it was all done in a second. I remember the car hitting the pole, and up to that time we were pretty near off. * * * The pole was located right near the curb, it seemed like; it was right at the edge of the ditch like, or the gutter, the street gutter, just a little to the right of that. * * * I stated while ago that my machine kept trying to turn to the right. I later found the cause of that. I think my wheels had become toed and caused the axle to tip forward, and the radius knuckle, the left knuckle on the radius rod, I think, broke. * * * At the time I struck this pole I was trying to cut my car to the left, at that time. I was trying to cut the car to the left with the steering wheel. I was trying to turn the steering wheel, using both hands, in an effort to cut the car to the left. That steering gear wouldn't work; it wouldn't cut to the left; my steering gear was loose. After the car struck this pole and went over the sidewalk it went right off into that ditch."

The general rule is that a municipality is charged with the duty of exercising ordinary care to so construct and maintain its public highways as to render them reasonably safe for ordinary travel. A breach of that duty imposes legal liability for all damages...