Blankenship v. City of Sherman

• Citation: 76 S.W. 805
• Parties: BLANKENSHIP v. CITY OF SHERMAN.<SMALL><SUP>*</SUP></SMALL>
• Decision Date: 14 November 1903
• Court: Texas Court of Appeals

76 S.W. 805

BLANKENSHIP v. CITY OF SHERMAN.^*

Court of Civil Appeals of Texas.

November 14, 1903.

Appeal from District Court, Grayson County; Rice Maxey, Judge.

Action by J. B. Blankenship against the city of Sherman. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Vowell & Caruthers, for appellant. Wilkins, Vinson & Moore, for appellee.

BOOKHOUT, J.

This suit was instituted by J. B. Blankenship against the city of Sherman to recover damages for personal injuries alleged to have been sustained by him in being run over by one of defendant's hose carts. The defendant interposed a general and special demurrer to the petition, which were by the trial court sustained, and from a judgment dismissing the cause plaintiff appealed.

Error is assigned to the action of the court in sustaining defendant's general demurrer and dismissing the case. The petition alleged: "That said charter gives said city the right to pass ordinances and do acts not contrary to the laws and Constitution of said state to promote the trade and commerce of said city. That on or about the ____ day of June, 1901, the council of said city passed an ordinance appropriating money and otherwise assisting in a fireman's convention to be held in said city, and ordered and directed the horses, carts, and fire engines belonging to the fire department of said city to take part in the parades and exhibitions during said convention; that said convention was for the purpose of promoting the trade and commerce of said city, and was intended for the private advantages and benefits of said city. Said city council, and the proper officers thereof, knew and expected that the horses attached to the various vehicles belonging to said fire department would be driven through the public streets of said city during said convention. Plaintiff alleges that during said convention one of the agents and employés of defendant carelessly and negligently ran a team of horses attached to a hose cart at a great rate of speed into a large crowd of people on the public square of said city; that without warning, or giving any signal, said agent and employé rapidly drove said team upon plaintiff, and knocked him down, and said cart ran over his body, bruising and lacerating plaintiff's body and limbs, and crushing the bones of one of his legs so that it became necessary to amputate said leg just below the knee." If the act of the city council in ordering the fire department of the city of Sherman to take part in the parade was without authority on the part of the city, then the plaintiff cannot recover. Thayer v. City of Boston, 19 Pick. 511, 31 Am. Dec. 157; Smith v. City of Rochester, 76 N. Y. 506; Tindley v. City of Salem, 50 Am. Rep. 289. The appellant insists that the city council had the power to order the fire department to parade; that the same was for the purpose of advertising the city, and to promote its trade and commerce—in other words, that the parade was for the private benefit of the city. It is contended that the power to order...