Butler v. City of Conroe

• Decision Date: 10 February 1920
• Docket Number: (No. 534.)
• Citation: 218 S.W. 557
• Parties: BUTLER et al. v. CITY OF CONROE et al.
• Court: Texas Court of Appeals

218 S.W. 557

BUTLER et al. v. CITY OF CONROE et al.

(No. 534.)

Court of Civil Appeals of Texas. Beaumont.

February 10, 1920.

Rehearing Denied February 18, 1920.

Appeal from District Court, Montgomery County; D. F. Singleton, Judge.

Action by Mrs. Joe Butler and husband against the City of Conroe and another. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

A. L. Kayser, of Conroe, and Adams & Young, of Crockett, for appellants.

W. N. Foster and R. J. Sullivan, both of Conroe, for appellees.

WALKER, J.

Appellants, Mrs. Joe Butler and her husband, Joe Butler, sued the city of Conroe and the Conroe Gin, Ice & Light Company for damages for injuries received by Mrs. Butler in falling over a pole lying across a public and used sidewalk in the city of Conroe. Mrs. Butler testified, in part, as follows:

"I was injured February 13, 1917. I had company, and started the family to eating supper, and then left home to go to the store for a box of crackers, and on leaving gate saw a door of the Catholic Church across the street open, and I went across and closed the door, which threw me late. This pole was lying there in the shadow. I ran over to Mr. Beakley's store and got a box of crackers, and wanted to get home in time for Mr. Butler to get his supper on time; consequently I ran into the pole. I had nothing else on my mind but getting the crackers. I fell down and my arm — I didn't think it was very bad until I got in the house and found it was just hanging loose. * * * I certainly did see that pole when it was first taken down. It was left directly in the shadow of the other pole that they put up. It lay there right across the sidewalk, * * * just like they drawed it out and put the other pole in, and it was left there for an indefinite length of time, right in the shadow of the pole, which would have looked just like the shadow, and I couldn't exactly — it didn't look like a pole. I saw Mr. James [a servant of the Conroe Gin, Ice & Light Company] take the pole down and saw him working sitting on the pole — when he got through, went away, and left the pole right at that same position. James works for the electric light people. I said the pole was lying right in the shadow of the other pole he put up. The light hangs out on the other side across the street, and naturally throws the shadow across the pole up the other way. * * * I went after a box of crackers, and I came running with them, and I did not have it [the pole] in my mind. I had getting home with the crackers in my mind. I was not thinking about the pole at all. I did not have anything on my mind at all, but getting right home and getting supper ready. If I had thought about the pole, I certainly wouldn't have fallen over it. * * * The pole was between my house and Mr. Beakley's store, lying right across the sidewalk. * * * It extended entirely across the sidewalk, which is now in front of Ike Ashe's house, and it lay right exactly in the shadow of the new pole that was put up there. It stayed right in that shadow there the entire time from the time until the 16th of February. I hurt my arm on the 13th. It stayed there until the 16th at 5 o'clock. It positively never had been moved from that position in the shadow of the pole that they put up immediately across the sidewalk all that time until three days, two or three days, after I received my injury. * * * It certainly did stay in that particular position for several weeks. * * * I knew that the pole was there all the time. I had passed over that pole before. I had not stumbled over that pole before; stepped over it in the daytime, I couldn't tell you how many times. Time and time again I had passed right over that pole, but not over the shadow."

Witness further testified that, when she left Beakley's store and got near enough, she did not see the shadow, and did not see anything. She was looking right at her house, and was going as fast as she could. At this place many of the citizens used the street, instead of the sidewalk. Joe Butler, one of the plaintiffs, testified:

"That sidewalk was generally and customarily used by the public. The street is constantly used by vehicles. * * * The sidewalk in question is ordinarily and customarily used by pedestrians going back and forth."

On these facts the trial court...