City of Austin v. Daniels

• Citation: 335 S.W.2d 753,160 Tex. 628,81 A.L.R.2d 1180
• Decision Date: 20 April 1960
• Docket Number: No. A-7315,A-7315
• Parties: , 81 A.L.R.2d 1180 CITY OF AUSTIN, Petitioner, v. Sarah DANIELS, Respondent.
• Court: Supreme Court of Texas

Page 753

335 S.W.2d 753

160 Tex. 628, 81 A.L.R.2d 1180

CITY OF AUSTIN, Petitioner, v. Sarah DANIELS, Respondent.

No. A-7315.

Supreme Court of Texas.

April 20, 1960.

Rehearing Denied June 15, 1960.

Doren R. Eskew, City Attorney, C. J. Taylor, Jr., & Thos. R. Hunter, Asst. City Atty., Austin, for petitioner.

Will Cowan, Arthur Mitchell, Austin, for respondent.

GREENHILL, Justice.

Sarah Daniels brought this suit against the city alleging that she was injured when she slipped and fell on some wet paint in the street. The paint had been freshly put down by city employees to indicate the area for the parking of cars adjacent to the curb and a parking meter. The trial court entered judgment for Sarah Daniels based upon the jury's verdict. That judgment was affirmed by the Court of Civil Appeals. 322 S.W.2d 384. We here affirm the judgments below.

The areas set aside for parking of automobiles were designated by painted lines. The lines had become worn. Under the direction of appropriate city employees, they had just been repainted. No devices, signs, or other methods of warning were used to call attention to the wet paint. While the paint was of a fast-drying variety, the testimony varied as to the length of time it took to dry. The upper surface of the painted line dried first. This crust gave the line the appearance of the paint's being dry.

Sarah Daniels parked her car in one of the designated spaces. She got out of the left side of her car, away from the curb, and walked around to deposit a coin in the parking meter. In so doing, she slipped in the paint and injured herself. From her testimony and from the paint on her clothes, there is ample evidence to support the jury's finding that she did fall down in the wet paint.

The jury found that the acts of the city's employees in placing the paint on the street under the circumstances constituted negligence; that their acts created a dangerous condition in the street; that the dangerous condition was hidden and concealed from plaintiff, Sarah Daniels; that the placing of the paint on the street under all the circumstances rendered this portion of the street in a condition that was not reasonably safe and created a hazardous and unsafe condition on the street. Each of these acts was found to be negligence and a proximate cause of Sarah Daniels' injuries. The jury further found that the failure to place any warning signs or devices was also negligence and a proximate cause. The jury found that the incident was not an unavoidable accident and that Sarah Daniels was not contributorily negligent.

The law questions which arise from these circumstances are complicated and difficult. When acting in a governmental capacity, the city is not liable in damages for torts of its employees. ¹ It is here conceded that regulation of traffic is generally held to be a governmental function and that the control of parking has been held to be part of the regulation of traffic. ² On the other hand, the maintenance of streets is a proprietary function. Negligence in the performance of this function renders the city liable for resulting injuries. City of Houston v. Shilling, 1951, 150 Tex. 387, 240 S.W.2d 1010, 26 A.L.R.2d 935; City of Austin v. Schmedes, 1955, 154 Tex. 416, 279 S.W.2d 326, 52 A.L.R.2d 680. And the city is under a duty to maintain the streets in a reasonably safe condition. This function has likewise been classified as proprietary. City of Galveston v. Posnainsky, 1884, 62 Tex. 118. ³

The problems here then are (1) is there evidence of negligence on the part of the city? That question will be discussed later herein. (2) Assuming negligence, what is the law where the city has breached its duty to maintain the streets in a reasonably safe condition when the acts performed are also connected with the governmental function of regulating traffic? (3) Is there any evidence to support the jury's finding that the fall of Sarah Daniels caused the injuries for which she was awarded damages? This question will likewise be discussed later herein.

Some of the Texas cases in which cities have been held liable for negligence in failing to maintain streets or sidewalks in a reasonably safe condition have involved obstructions. ⁴ In others, the cities have been held liable for their negligence in leaving holes or unguarded openings in streets or sidewalks. ⁵

In other jurisdictions cities have been held liable for allowing ice and snow to remain on the streets and sidewalks, assuming negligence under all the facts and circumstances. ⁶ In City of Waco v. Diamond, Tex.Com.App.1933, 65 S.W.2d 272, the plaintiff slipped on ice after getting off a streetcar. The Texas Commission of Appeals recognized a duty to keep the streets in a reasonably safe condition but reversed the case because, under all the facts and circumstances (an unprecedented freeze and a 15-inch snow) there was no evidence of negligence on the part of the city.

And in Delgado v. Town of Billerica, 1948, 323 Mass. 483, 82 N.E.2d 591, the city was held liable for injuries caused when the car in which plaintiff was riding slipped in oil freshly applied to a street where no sign or other warning was given of the unsafe condition in the street. ⁷

From these cases dealing with the proprietary function, we turn to those dealing with the regulation of traffic which have been held to be governmental. Where signal lights were out of order, i. e., traffic from all four directions got a green light and a collision resulted, liability of the city has been denied. ⁸ Similarly, the cities have been absolved of liability for negligence in failing to install a central switch to operate all traffic signals in the paths of fire or police vehicles making emergency runs. ⁹

Johnson v. City of Jackson, 1952, 194 Tenn. 20, 250 S.W.2d 1, 33 A.L.R.2d 756, involved a combination of two governmental functions and liability was denied. There a policeman, riding a motorcycle and checking parking meters, ran over the plaintiff. The city's demurrer was sustained.

Each of these cases involved the direction of traffic and the use of the street for a governmental function, and did not involve the condition of the street itself.

There have been a number of cases where use of the street for a governmental purpose has combined with the proprietary function of properly maintaining the streets. In City of Port Arthur v. Wallace, 1943, 141 Tex. 201, 171 S.W.2d 480, a firetruck swerved out of its path because of holes in the street and struck the plaintiff. The court recognized that the city acted in a governmental capacity in operating the firetruck and in a proprietary capacity in failing to maintain the streets in a reasonably safe condition. It was held that where the defect in the street combines with other causes to produce the injury, the city was liable. ¹⁰

The Port Arthur-Wallace case cited with approval, among others, two cases. The first is City of Austin v. Schlegel, Tex.Com.App.1924, 257 S.W. 238. There a firetruck, on its way to a fire, slowed down to pick up a civilian volunteer. He got bumped off the truck when it hit a hole in the street. The city was held liable. The second case was Kling v. City of Austin, Tex.Civ.App.1933, 62 S.W.2d 689, 690. (no writ). There the city allowed a fire hydrant to remain in a driveway to a filling station. It was struck by plaintiff's car at night. Judge McClendon there wrote,

'The precise question here is whether breach of this duty (to maintain streets) is rendered nonactionable where the unsafe condition is caused by either the improper location of a governmental function instrumentality or the failure to properly guard such instrumentality so as to render it reasonably safe.' ¹¹

It was held in the Kling case that 'the duty to maintain the reasonable safety of the streets would impose the obligation' to use reasonable means to guard against the hazard. The city was held liable. ¹²

The governmental function of traffic regulation and the proprietary function of maintenance of the streets also merged in Crow v. City of San Antonio, 1957, 157 Tex. 250, 301 S.W.2d 628. There, to protect school children crossing a street, a fireman had stretched a rope across a street. Its function was to direct traffic away from the school crossing. The plaintiff, riding a motorcycle, failed to see the rope and was injured. The Court of Civil Appeals held that the rope had nothing to do with maintenance of the streets; that it was there in the governmental function of regulating traffic. 294 S.W.2d 899. This Court reversed and rendered the judgment of the Court of Civil Appeals. Citing the cases above set out, it was held that the city owed the duty to maintain its streets in a reasonably safe condition for travel, and that the duty existed even though the city was at the same time exercising a governmental function. ¹³

The case nearest in point, from the standpoint of physical facts, is that of Cleary v. City of New York, City Ct.1944, 47 N.Y.S.2d 456. ¹⁴ There, as here, the plaintiff slipped in wet paint put down on a traffic lane. The jury found that the city was negligent and absolved the plaintiff of contributory negligence. It was held that while the regulation of traffic was governmental, the city nevertheless owed the duty to maintain the surface of the street in a reasonably safe condition. The court distinguished a New York case in which a collision occurred when the city, exercising a governmental function, negligently allowed traffic lights to show green in all four directions.

This is the first case in this Court dealing with a slippery substance deliberately put upon the surface of a street by a city. Nevertheless, if negligence is proved, the defect or hazard created may be just as serious a condition as an obstacle, a hole, or a rope stretched across the street. It certainly may be as dangerous as ice negligently allowed to remain on the street, liability for which follows in many...