Adams v. Grapotte
| Decision Date | 16 February 1934 |
| Docket Number | No. 1230.,1230. |
| Citation | 69 S.W.2d 460 |
| Parties | ADAMS v. GRAPOTTE. |
| Court | Texas Court of Appeals |
Appeal from District Court, Bexar County; W. S. Anderson, Judge.
Action by Marie Grapotte against Charles D. Adams. Judgment for plaintiff, and defendant appeals.
Reversed, and judgment rendered for defendant.
T. M. West and Nat L. Hardy, both of San Antonio, for appellant.
Carter & Lewis, Champe G. Carter, Randolph L. Carter, and H. C. Carter, all of San Antonio, for appellee.
The appeal is from a judgment in favor of appellee against appellant for damages for personal injuries. At the time appellee sustained her injuries she was walking along a sidewalk on St. Mary's street in the city of San Antonio, and was caused to fall by stepping into a hole, or depression, about three inches deep in front of a garage which appellant was operating as the tenant of J. M. Nix. Neither the city nor the owner of the building was made a party defendant; the contest being alone between the appellee and the tenant. In some unexplained manner an abrasion was made on the concrete sidewalk before appellant became the tenant of the building and, by the action of cars in passing over it upon entering and departing from his place of business, the hole, or depression, was made deeper during the few months of his occupancy prior to the injury. The jury found that appellant's operation of the garage and use of the drive-in-way in question directly caused or contributed to the hole or depression, and convicted him of negligence in the following particulars: (1) In causing this condition to exist; (2) in permitting this condition to exist; and (3) in failing to have the hole or depression repaired before the accident. In due time, appellant requested the court to peremptorily instruct a verdict in his favor, and the failure of the court to do so is made the basis of the first assignment of error.
The Star Garage, operated by appellant, abutted upon St. Mary's street. In order for customers to enter and depart from the garage, it was necessary for them to drive over the sidewalk. No question is presented that the drive-in-way did not in all respects conform to the requirements of the city, if any it had. Liability was not predicated upon any statute or any ordinance, but solely upon the common law. The theory, as disclosed by appellee's brief, seems to be that appellant was enjoying some kind of special privilege in the sidewalk by using same as an integral part of his business, for which reason the duty devolved upon him, as the proprietor of the business, to keep the sidewalk in repair. There is not found in the record any evidence whatever that appellant conducted any business on the sidewalk; that he, by any affirmative act, or otherwise, made this depression therein, or caused the one existing when he became the tenant to be made deeper, but only that his customers caused same to be made deeper by driving their automobiles over it.
It would scarcely seem necessary to cite authorities in support of the proposition that sidewalks are a part of the street, that the duty to exercise ordinary care to maintain them in a reasonably safe condition for the use of the public rests upon the city, and that an abutting owner owes no duty in that regard. City of San Antonio v. Wildenstein, 49 Tex. Civ. App. 514, 109 S. W. 231; Werner v. Trout (Tex. Civ. App.) 2 S.W.(2d) 525; Breen v. Johnson Bros. Drug Co., 297 Mo. 176, 248 S. W. 970; Elliott on Roads & Streets (4th Ed.) § 898. Appellee recognizes this doctrine to be sound. She does not contend that the sidewalk was private property, but alleged in the petition upon which she went to trial that "said sidewalk in the place where plaintiff fell was a much used public thoroughfare." She is not suing the owner of the building, thereby impliedly recognizing that no liability exists against him by virtue of his ownership. She seeks to hold the tenant liable on the ground that he contributed to this condition by inviting his customers to use the drive-in-way over the sidewalk. Her theory is based essentially upon the assumption that appellant was making a wrongful use of a portion of the public thoroughfare. Is the assumption correct? We think not. Access to a public highway is an incident to the ownership of land abutting thereon, and the right to such access is private property passing to the lessee. That right cannot be taken...
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...that this right cannot be taken or destroyed for public purposes without adequate compensation being given therefor. Adams v. Grapotte, Tex.Civ.App., 69 S.W.2d 460; Powell v. Houston & T. C. R. Co., 104 Tex. 219, 135 S.W. 1153, 46 L.R.A., N.S., 1615. While this rule is universally followed ......
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