Alpine Telephone Corporation v. McCall
| Decision Date | 07 March 1946 |
| Docket Number | No. 4449.,4449. |
| Citation | 195 S.W.2d 585 |
| Parties | ALPINE TELEPHONE CORPORATION v. McCALL. |
| Court | Texas Court of Appeals |
Appeal from District Court, Brewster County; H. O. Metcalfe, Judge.
Action by W. D. McCall, individually and as next friend of Earl Neal McCall, a minor, against the Alpine Telephone Corporation for personal injuries to the minor as the results of a collision between an automobile and defendant's telephone pole. Judgment for plaintiff, and defendant appeals.
Affirmed.
Robertson, Leachman, Payne, Gardere & Lancaster, of Dallas, (George P. Gardere, of Dallas, Allen R. Grambling and Jones, Hardie, Grambling & Howell, all of El Paso, on the brief), for appellant.
Frank O. Ray, of Alpine, and Morriss & Morriss, of San Antonio, for appellee.
This is the second appeal in this case. The opinion of this court on the former appeal is reported in 183 S.W.2d 205, and that of the Supreme Court in 143 Tex. 335, 184 S.W.2d 830. The suit was brought by W. D. McCall individually and as next friend of his minor son, Earl Neal McCall, to recover damages for personal injuries to his son alleged to have been proximately caused by the negligence of the Alpine Telephone Corporation. Trial to a jury resulted in a verdict answering special issues on which judgment was entered against the corporation in favor of W. D. McCall individually for $10,000, and as next friend of Earl Neal McCall for $32,500.
The injuries resulted from a collision between an automobile driven by Oscar Moses along Holland Avenue in the city of Alpine, and a telephone pole owned and maintained by the corporation, situated near the north curb of Holland Avenue. The collision occurred between 9:30 and 10 o'clock p.m. on June 8, 1939. Appellant concedes that "the testimony upon the present trial * * * as to the circumstances surrounding the accident was substantially the same as appeared upon the previous trial." Therefore, without repeating we refer to the two previous opinions above cited for detailed statement of these circumstances.
The telephone corporation operated under a franchise granted to S. G. Smith by ordinance of the city of Alpine in 1923. Section II of this ordinance is set out in both opinions on the former appeal. The Supreme Court held that the building of the north curb of Holland Avenue by the abutting landowner and the long use of the street was sufficient to raise a rebuttable presumption of dedication, and since the telephone corporation had introduced no evidence as to the location of the curb line and had maintained the pole located south of the curb as it was established on the ground, it was guilty of negligence as a matter of law.
In an effort to establish that it had placed and maintained the pole so as to conform with the reasonable rules and regulations of the city commission of the city of Alpine as provided by the ordinance granting its franchise appellant introduced three ordinances of the city of Alpine approved April 6, 1930. These ordinances levied assessments against the property owners whose property abutted a portion of Holland Avenue, including the block where the accident occurred, to pay for grading and paving said avenue, and for constructing or resetting curbs where required, such improvements having theretofore been ordered; accepted such improvements and authorized the issuance of assessment certificates in payment therefor, and exempted from assessment certain homestead property in front of which no improvements were made. To establish that the pole was located north of the true north curb line of Holland Avenue, appellant also introduced the testimony of and a plat prepared by H. R. Gard, County Surveyor of Brewster County. The Court refused to submit requested issues as to whether the pole was maintained within the terms of the ordinance or placed within provisions of the franchise or was located north of the curb line on Holland Avenue, but submitted whether maintenance of the pole at the place it was maintained was a proximate cause of the injuries.
By appropriate points appellant contends that the court erred in refusing to direct a verdict in its favor because the ordinances above referred to approved the location of the curb line at the point of the accident at a point which placed the pole outside of the street, and hence its location could not have been a proximate cause of the accident; and also erred in refusing to submit the requested issues. As we understand the points, appellant also contends that the ordinances of April 6, 1930 "designated" the location of the pole south of the curb as it existed on the ground and constituted "reasonable rules and regulations of the city commission" within the purview of the ordinance of 1923, even though the curb as it existed on the ground constituted the true curb line, and further that such ordinances and the testimony of Gard established as a matter of law a curb line at the point of the accident which placed the pole outside of Holland Avenue, or raised an issue of fact as to the establishment of such curb line; and that location of the pole was shown not to have been a proximate cause of the accident as a matter of law.
That the ordinances of April 6, 1930, did not operate to designate the location of the pole south of the curb as it existed on the ground regardless of whether such location placed it within Holland Avenue is, we think, apparent from the nature of the ordinances above stated. Nowhere do they mention or refer to the location of the pole. The mandatory provisions of the ordinance of 1923 that poles "must be placed on the outer edge of sidewalks next to the curb line, inside the curb stone unless otherwise designated by the city commission or other person under its direction" obviously require a specific designation to warrant the location of poles other than that specified in the ordinance, especially when such location would place the poles within a public street. No such designation is specified by the ordinances of April 6, 1930, and none can be implied therefrom. In our opinion the ordinances of April 6, and the testimony of Gard were insufficient to raise an issue of fact as to the true location of the curb line. However, we deem it unnecessary to determine this question authoritatively, in view of the Supreme Court's holding on the former appeal, which is the law of the case. It was there specifically held that the "curb line" as used in the ordinance requiring telephone poles to be placed "next to the curb line, inside the curb stone" means the line established on the ground, and is coincident with the curbstone and not some imaginary line having no existence except perhaps on a map or plat. The undisputed evidence on this trial as on the former trial shows that the pole in question was located south of the north curb stone or curb line of Holland Avenue as established on the ground, and therefore was located within Holland Avenue in violation of the ordinance. The Supreme Court also specifically held that it could not be held as a matter of law that the telephone corporation's negligence in maintaining the pole in violation of the ordinance was not the proximate cause of the accident. Since the evidence on this trial was substantially the same on this point as on the former trial, such holding forecloses the question. Spencer v. Pettit, Tex.Com.App., 34 S.W. 798; Quanah A., P. Ry. Co. v. Edlen, Tex. Civ.App., 87 S.W.2d 540; Wr. Ref.; Anderson-Berney Bldg. Co. v. Lowry, Tex.Civ. App., 177 S.W.2d 984, Wr. Ref. W. M.
Appellant also contends that the court erred in overruling its motion for a directed verdict, because the uncontradicted evidence showed contributory negligence of Earl Neal McCall proximately causing or contributing to his injuries as a matter of law. The contributory negligence specified in the motion was that the boy was riding on the right-hand running board of the automobile, and that he failed to keep a lookout for his own safety. In answer to special issues the jury found that the position Earl occupied on the running board of the automobile was not negligence and that he did not fail to keep a proper lookout for his own safety. Oscar Moses, the driver of the automobile on which Earl was riding, testified that he told the boys that they would have to stand on the running board, that they did not have room in the car. Earl testified that he got on the right side and had his left arm hooked around the two doors and was holding Floyd Dalton's hand over the top of the car with his right hand; that he was facing directly across the top, looking at Floyd; that his body was flush with the car; that the running board was eight inches or maybe wider and that no part of his body protruded over the edge of the running board. His testimony as to his position on the running board is corroborated by Moses. Moses also testified that after he got on Holland Avenue he was driving very slow, between 10 and 15 miles an hour, not over 15 miles. This evidence clearly raised an issue of fact as to whether Earl's position on the running board constituted contributory negligence. Although a standing position on the running board of a car is ordinarily considered dangerous, it is usually for the jury to say if it was negligence and contributed to the injury. Cyclopedia of Automobile Law & Practice, Blashfield, Vol. 4, § 2748, p. 504, citing Robinson v. American Ice. Co., 292 Pa. 366, 141 A. 244; see also Sexauer v. Pittsburgh Ry. Co., 305 Pa. 319, 157 A. 603. Since the evidence showed there was no other place for Earl to ride; that the car was driven at a slow rate of speed; and that the position he took on the running board was a comparatively secure one, we cannot say that his riding on the running board constituted contributory negligence as a matter of law.
The issue as to failure to keep a proper lookout was followed...
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