City of Abilene v. Fillmon
| Decision Date | 02 December 1960 |
| Docket Number | No. 3601,3601 |
| Citation | 342 S.W.2d 227 |
| Parties | CITY OF ABILENE, Appellant, v. Ava N. FILLMON, Appellee. |
| Court | Texas Court of Appeals |
J. Neil Daniel, Abilene, for appellant.
Jack M. Yates, Abilene, for appellee.
Mrs. Ava N. Fillmon brought this suit for damages against the City of Abilene. Plaintiff alleged that she sustained serious personal injuries as a result of a fall in the alley back of her house while fleeing from wasps which attacked her as she was attempting to repair her back fence. She alleged that the city was guilty of negligence in constructing, maintaining and allowing a ridge of dirt to remain at the edge of the improved portion of the alley; that in attempting to escape from the wasps she fell across the ridge and broke her hip, and that the negligence of the city was the proximate cause of her injuries. The case was tried before a jury and based upon the verdict, judgment was rendered for the plaintiff in the sum of $4,650. The City of Abilene has appealed.
Points of error urged by appellant are that the court erred in overruling its motion for summary judgment because (1) the claim and notice of injury filed by appellee was insufficient; that the judgment should be reversed and rendered for appellant because (2) there was a material variance between the notice filed by appellee and the facts she alleged and proved at the trial, and (3) there was no evidence of probative force to support the findings of the jury that appellant was guilty of negligence proximately causing appellee's injuries. Appellant also urges (4) that the evidence was insufficient to support the findings of the jury.
Chapter 30, section 31-1 of the code of the City of Abilene provides:
Notice, Within Thirty Days.
'Before the City of Abilene shall be liable for personal injuries of any kind, the person injured or someone in his behalf shall give the Mayor or the Board of Commissioners of said City notice in writing of such injury within thirty days after the same has been sustained, stating specifically in such notice when, where and how the injury occurred, and the apparent extent thereof, and the failure to so notify the City within the time and manner specified shall exonerate, excuse, and exempt the City from all liability whatsoever.'
Appellee's injury occurred on August 6, 1957. Less than 30 days later on August 24, 1957, appellee filed notice with the city in the form of a letter substantially as follows:
'I live at 1209 Cedar Street here in the City of Abilene and on the 6th of August of this year, I went out in my alley to see about what the City employees were doing.
* * *'
Mrs. Fillmon's notice to the City of Abilene was in writing and delivered to the Mayor and Commissioners as provided by the code. It advised the city when, where and how her injury occurred and the apparent nature and extent of her injury. The notice advised the city that her injury occurred (1) on August 6, 1957, (2) 'in my alley', (3) that she 'stumbled over a high furrow that the city employees had left after going down the alley with a blade', and that the fall caused her to break her hip and to incur extensive medical and hospital expenses. The notice of injury delivered to the city was in substantial compliance with the city code and we overrule appellant's contention that it was insufficient as a matter of law.
Appellant also urges that there was a material variance between the notice of injury received by the city and the facts alleged and proved by Mrs. Fillmon. The variance relied upon by appellant is that Mrs. Fillmon stated in her notice that she sustained a fall and was injured by stumbling over 'a high furrow' in her alley 'that the city employees left after going down the alley with a blade', while she alleged in her petition that she either slipped or tripped on a 'ridge' in the alley, and that she and her witnesses by their testimony described the condition of the alley which caused her fall and injury as a 'ridge, levee, knoll or embankment'. In our opinion this contention is not well taken. There is no material difference between a 'ridge' and a 'high furrow' left by the blade of a road grader. A description of the defect causing injury is not by specific language required to be included in the notice provided for by the code of the City of Abilene. The necessity for the description of such defect was by reason of the requirement for a statement of 'how the injury occurred'. The statement of how the injury occurred was with sufficient accuracy to give the city ample opportunity to investigate the accident while the facts were fresh and conditions were substantially the same. This is the purpose of notice requirements such as here involved. The variation in the facts as described in the notice of injury and as shown in appellee's allegations and proof is not of a material nature. Actually there is no variance at all but the same thing is said in different words which have substantially the same meaning. The variance is not of such a nature as to handicap the city in the defense of a case against it or to deprive the city of any of the benefits contemplated by Chapter 30, section 31-1 of the code.
We next consider points bearing upon the questions of whether there is any evidence and whether the evidence is sufficient to support the findings that appellant was guilty of negligence proximately causing Mrs. Fillmon's fall and resulting injury. The jury found that there was a caliche or gravel ridge in the alley, that Mrs. Fillmon tripped on or fell across it, that she thereby received injuries, that appellant knew or in the exercise of ordinary care should have known of the ridge, that appellant was guilty of negligence in allowing the ridge to remain in the alley and that such negligence was a proximate cause of Mrs. Fillmon's injury.
The evidence shows that Mrs. Fillmon did fall and sustain injury in the alley at the rear of her home. The alley was 20 feet wide, dedicated, accepted and for many years used by adjacent property owners and the public, and has been continuously supervised and maintained by the City of Abilene. For some time prior to Mrs. Fillmon's injury in August of 1957 the alley had been partially hard surfaced with gravel or caliche. Utility lines for water, gas, electricity...
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Besette v. Enderlin School Dist. No. 22
...or not, is similar in nature to permit the city to investigate the basis of the claim while the facts are fresh. City of Abilene v. Fillmon, Tex.Civ.App., 342 S.W.2d 227, ref., n. r. e. Insofar as the limitation statutes are concerned, the Legislature has expressed the public policy of this......
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City of San Antonio v. Ramundo, 14498
...merely requires a statement of 'when, where and how' the injury occurred. Relying on such cases as City of Abilene v. Fillmon, 342 S.W.2d 227 (Tex.Civ.App., 1961, writ ref'd n.r.e.), and City of Houston v. Watson, 376 S.W.2d 23 (Tex.Civ.App., 1964, writ ref'd n.r.e.), plaintiff contends tha......
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Miller v. Cozart, 16573
...637. 'The rule of foreseeability * * * does not require anticipation of the full details of an accident.' City of Abilene v. Fillmon, Tex.Civ.App., 342 S.W.2d 227, 231, wr. ref. n. r. Appellant's first four points of error are overruled. By his fifth point of error appellant says there was ......
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City of Houston v. Bergstrom, 487
...or not, is similar in nature--to permit the city to investigate the basis of the claim while the facts are fresh. City of Abilene v. Fillmon, Tex.Civ.App., 342 S.W.2d 227, ref., n.r.e. Insofar as the limitation statutes are concerned, the Legislature has expressed the public policy of this ......