City of Austin v. Schmedes

• Decision Date: 23 June 1954
• Docket Number: No. 10240,10240
• Citation: 270 S.W.2d 442
• Parties: CITY OF AUSTIN et al. v. SCHMEDES et al.
• Court: Texas Court of Appeals

Page 442

270 S.W.2d 442

CITY OF AUSTIN et al. v. SCHMEDES et al.

No. 10240.

Court of Civil Appeals of Texas, Austin.

June 23, 1954.

Rehearing Denied July 21, 1954.

Touchstone & Bernays, James A. Knox, Dallas, for Robert J. McKown and others.

W. T. Williams, City Atty., Robert L. Burns, Doren R. Eskew, Asst. City Attys., for City of Austin.

Coleman Gay, Austin, for Dean Skinner.

Cofer & Cofer, Powell, Wirtz, Rauhut & McGinnis, William A. Brown, Austin, for appellees.

HUGHES, Justice.

This is a suit for damages arising out of the collision of two automobiles, one driven by appellee, Curtis O. Schmedes, and the other by Carl H. Anderson who is not a party to this suit.

Mr. Schmedes sues for himself, his wife and as next friend for his infant daughter.

Appellants, who were defendants below, are the City of Austin, Robert J., Obert B., Austin B., and Arthur L. McKown and Dean Skinner.

The collision occurred shortly before 6 p. m. December 9, 1952, at the crest of a sharp hill on the east side of East Avenue between 12th and 13th Streets, within the corporate limits of the City of Austin.

East Avenue, between these two streets, had for many years past been a divided highway, the traffic being one way on each side of the divided street. At the time of the collision, however, the west side of East Avenue between 12th and 13th Streets was closed and was undergoing changes and improvements.

These changes and improvements were being made by the McKowns as subcontractors under a general contract between the Texas Highway Department and Dean Skinner.

Liability of appellants was established below and is sought to be sustained here on findings of the jury that there was a negligent failure to erect proper warning signs at certain points which was the proximate cause of the collision and resulting injuries and damages.

We insert the following sketch for a better understanding of the facts and jury findings:

Carl Anderson entered East Avenue at 14th Street, driving west, East Avenue at this point being a two-way street. Turning south Mr. Anderson proceeded past barricaded 14th Street as it intersected East Avenue from the west and past the barricaded west fork of divided East Avenue and hence on the east side of such street to the point of impact at the crest of a hill.

Mr. Schmedes was driving north on the east prong of divided East Avenue.

The two cars confronted each other at the crest of a small hill and collided. After seeing each other there was nothing which either driver could do to avoid the collision.

The jury found that the failure to provide signs for directing traffic entering East Avenue from the east on 14th Street was negligence and that the failure to provide a sign warning southbound traffic not to enter the east roadway in the 1200 block of East Avenue was also negligence and that such negligence was the proximate cause of appellees' injuries.

The jury also found that the collision was not the result of an unavoidable accident and that the operation of the Anderson car at the time was not the sole proximate cause of the collision.

Based on these findings, the damage issues and failure to find Mr. Schmedes contributorily negligent, a joint and several judgment was rendered against appellants. Strangely enough no appellant asks indemnity from any other appellant.

The first point of error is directed to the failure of the court to inquire if the negligence found by the jury was the negligence of appellants or of one or more of them. The issues were not so framed. They simply inquired if the matters mentioned constituted negligence.

Appellants summarize their argument as follows:

'It is a basic rule of tort law that facts, found by a jury which connect the defendant to the situation, may give rise to a duty, the violation of which would constitute negligence on the part of the defendant. Now, if the evidence should show the defendant duly connected so as to give rise to a duty, then, perhaps a jury finding would not be absolutely essential. But, what of the situation, as in this case, where the evidence points in the other direction, then certainly it must be elementary that the plaintiff at least submit an issue inquiring as to whether the defendant is sufficiently involved in the situation that a duty might exist.'

If appellants would point to any disputed material evidence regarding the proximity to or extent of involvement in the situation, out of which this lawsuit arose, as to any appellant then we would ststain this point. There is, however, no such evidence referred to by appellants nor found by us.

The facts regarding the relationship of each appellant to each other and to this controversy and all inferences to be drawn therefrom are of an undisputed nature.

The City of Austin is a municipal corporation with certain duties and responsibilities regarding its streets. Just what these duties and responsibilities are, under the facts presented, is a matter of law.

Construction of the contract between the State and Skinner is also a question of law, not fact, as is the determination of the rights, duties and obligations of independent contractors, McKowns, under the subcontract and the undisputed evidence.

We quote from Prosser on Torts, Hornbook Series, p. 280:

'The existence of a duty. In other words, whether upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other-or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant. This is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court.'

See also City of Bryan v. Jenkins, Tex.Civ.App. Waco, 247 S.W.2d 925, writ ref. n. r. e.

Point One is overruled.

The Second Point is that Special Issues 1 and 3 commented on the weight of the evidence in assuming that 'the construction job was in some manner or way involved in this lawsuit, and by further assuming that there was a failure to provide signs.'

Issues Numbers 1 and 3 contained these clauses respectively: 'Do you find from a preponderance of the evidence in connection with the construction job in the area of East Avenue involved in this suit that the failure to provide directing signs' and 'Do you find from a preponderance of the evidence in connection with the construction work involving the portion of East Avenue involved in this suit that the failure to provide a sign, * * *'

There were no signs at the places inquired about and we do not understand appellants to dispute this fact for they say 'If there is any dispute at all, it is a dispute as to how much of a surrounding area is a contractor responsible for.'

Arguing from the fact that no work was being done or under contract to be done on the east side of East Avenue between 12th and 15th Streets appellants say that 'the most controverted fact issue in the whole case was whether either of them was so connected with the scene of the accident by virtue of the construction job as to give rise to a duty to place directing signs at the entrance of Fourteenth Street on the east side of East Avenue.'

It is undisputed that the construction job underway on the west side of East Avenue had the necessary effect of closing the west side of the street to traffic and of leaving the east side as the only means of continuous north-south travel on this street in this area, thus automatically converting, practically if not legally, a one-way street into a two-way street.

It follows that, in our opinion, these two issues did not assume any disputed facts. As indicated above the duty of appellants under conditions conclusively shown is for the court to determine.

The Third Point is that Special Issues 1 and 3 are ambiguous and misleading because they contain the words 'in connection with the construction job in the area of East Avenue involved in this suit.'

This point is overruled as we see nothing ambiguous or misleading in the language used when considered in the light of the record with which the jury was familiar.

Point Four complains that the jury should not have been asked if the failure to provide a sign warning southbound traffic not to enter the east roadway in the 1200 block of East Avenue was the proximate cause of appellees' injuries because, as a matter of law, the conduct of Carl H. Anderson was at least 'a new and intervening cause, if not the sole proximate cause of the accident.'

When Anderson entered East Avenue from 14th Street there was no warning not to enter. After entering there was no sign telling him not to turn south on East Avenue which was a two-way road. He proceeded south to the barricaded west fork of the divided street. There was no sign there ordering him to stop, to turn around, back up or do anything. There was just no sign. Mr. Anderson proceeded on down East Avenue on the east roadway which was the only route south left open for him to...