City of Austin v. Ritz

• Decision Date: 04 December 1888
• Citation: 9 S.W. 884
• Parties: CITY OF AUSTIN v. RITZ.
• Court: Texas Supreme Court

Page 884

9 S.W. 884

CITY OF AUSTIN v. RITZ.

Supreme Court of Texas.

December 4, 1888.

Commissioners' decision. Appeal from district court, Travis county; A. S. WALKER, Judge.

Action for damages by A. R. Ritz against the city of Austin. Judgment for plaintiff, and defendant appeals.

George F. Pendexter, for appellant. Dudley G. Wooton, for appellee.

COLLARD, J.

This suit was brought by the appellee against the appellant to recover damages for personal injuries alleged to have been sustained by plaintiff by being overturned while attempting to drive his spring wagon across a ditch at the intersection of Trinity and Mesquite streets, in the city of Austin. Defendant excepted to the sufficiency of the petition, because it was not alleged that the city had actual notice of the defective condition of the crossing, nor such facts as would amount to constructive notice of the same. The court overruled the exceptions, and plaintiff has assigned the ruling as error. It is settled by numerous authorities that a municipal corporation cannot be held liable for injuries caused by defective streets, sidewalks, crossings, etc., unless it has actual or constructive notice of the defect. Klein v. City of Dallas, (decided by the commission of appeals, Austin term, 1888,) reported in 8 S. W. Rep. 92, and see note. In the note to the above case in the Southwestern Reporter a safe rule is given, as to constructive notice, as follows: "If a state of facts exist such that ignorance can only arise from a failure to exercise reasonable official care, notice may be inferred by the jury." Notice, actual or constructive, must be left to the jury. They must determine the question as a fact, from all the circumstances. What facts will be sufficient "to affect the corporation with the consequences of notice, — that is, what facts would amount to constructive notice, — would depend upon a variety of circumstances, — the length of time the defect had existed, its notoriety, the frequency of travel over it, and the character of the defect itself." Klein v. City of Dallas, supra. It is an elementary rule of pleading in this state that every material fact necessary to constitute the cause of action must be alleged. If not alleged it cannot be proved,—it cannot become a basis of recovery. Gray v. Osborne, 24 Tex. 158; Sneed v. Moodie, Id. 159. It is alleged that the city negligently and improperly dug and excavated the ditch or drain so as to render the crossing dangerous and unfit for safe travel. This allegation is sufficient, without an allegation of notice, because, where a corporation makes a dangerous crossing, no notice of it is necessary to be proved. The defendant could have limited the investigation to the above allegation. The petition did not risk the case upon the one allegation, charging the city with making the dangerous crossing. It proceeds to allege that, in addition to the excavation of the ditch, defendant permitted the same to become out of repair, by washing, widening, and deepening to a dangerous width and depth, so as to render the crossing exceedingly unsafe and hazardous. Notice of the facts stated in this averment should have been alleged. It was relied on for a recovery. After the evidence was offered on the trial, it was by no means evident that the city dug the ditch, and the foregoing allegation, that the city permitted the ditch to become and remain dangerous to travel, was of great importance, independent of other allegations. The assignment of error should be sustained only as to the latter allegation.

It is claimed that there was error in allowing plaintiff to read in evidence the answer of plaintiff to an interrogatory as follows: "My time was worth to my family at least $125 per month," — because the answer was inadmissible in estimating the damages. We agree with appellant. The answer was inadmissible. The jury estimated plaintiff's damage for loss of time while sick and disabled at $1,500. What his time was worth to his family was not the question. The actual value of the time lost was the real issue on this branch of the case.

Mrs. Brackenridge and Miss McLean were sitting in a buggy looking on at the drive. Plaintiff was attempting to make across the ditch. After the plaintiff's wagon turned over, Mrs. Brackenridge threw the reins to Miss McLean, and went to the assistance of plaintiff. A Mr. Hoxhausen was with plaintiff in his wagon at the time of the accident. After rendering such assistance to plaintiff as she could, Mrs. Brackenridge returned to her buggy, Hoxhausen accompanying her, when they drove down the avenue to a drugstore. On the way to the drug-store, Hoxhausen stated that when he and plaintiff reached the ditch he asked Mr. Ritz if he thought he could cross over safely. Ritz replied that he thought he could. Defendant offered to prove this statement of Hoxhausen by Miss McLean. Hoxhausen also stated to Mrs. Brackenridge on the drive to the drug-store that "he did all he could to keep Mr. Ritz from attempting to drive across the ditch, but he insisted upon doing it. These statements were objected to by plaintiff. The appellant insisted that they were admissible as res gestæ. The court sustained the objection. We think the ruling was correct. The statements were but a narrative of what occurred, not a part of the occurrence, nor contemporaneous with it. The main fact was past. Hoxhausen's declarations as to what was said and done by him and Ritz were hearsay, and inadmissible. 1 Greenl. Ev. § 110.

Defendant asked the court to charge the jury as follows: "A person traveling on a public highway, where a part of such highway is worked and traveled, and a part thereof is not worked and traveled, is bound to keep upon the worked or traveled part of such highway, if the same is in proper condition for travel; and if he goes out of such traveled way, either within the limits of the highway or beyond such limits, and injuries result, then he cannot recover for such injuries." The court refused the charge. Appellant says the ruling was error. If a person is injured while voluntarily and without necessity traveling outside the limits of a public street, the city would not be liable; but we cannot say he would be required in all cases to drive on the worked or traveled part of the street. Such part of the street might be the worst part of it, and more dangerous than the untraveled or unworked portion of it. We think the rule requiring the driver to use care in driving, such as a person of ordinary intelligence and prudence would use under like circumstances, is sufficient. A rule requiring the driver always to...