City of Austin v. Schmedes

• Decision Date: 04 May 1955
• Docket Number: No. A-4890,A-4890
• Citation: 154 Tex. 416,279 S.W.2d 326,52 A.L.R.2d 680
• Parties: , 52 A.L.R.2d 680 CITY OF AUSTIN et al., Petitioners, v. Curtis O. SCHMEDES et al., Respondents.
• Court: Texas Supreme Court

Page 326

279 S.W.2d 326

154 Tex. 416, 52 A.L.R.2d 680

CITY OF AUSTIN et al., Petitioners, v. Curtis O. SCHMEDES et al., Respondents.

No. A-4890.

Supreme Court of Texas.

May 4, 1955.

Rehearing Denied June 8, 1955.

W. T. Williams, Jr., City Atty., and Doren R. Eskew, Asst. City Atty., Austin, for City.

Coleman Gay, Austin, for Dean Skinner.

Touchstone & Bernays and James A. Knox, Dallas, for McKown & Sons.

Powell, Wirtz, Rauhut & McGinnis and Cofer & Cofer, Austin, for respondents.

CALVERT, Justice.

Curtis O. Schmedes, as plaintiff, suing for himself and his wife, and as next friend for his infant daughter, sought by this suit to recover damages from City of Austin, Robert J., Obert B., Austin B., and Arthur L. McKown and Dean Skinner, defendants. The defendants will be referred to in this opinion as the City, the McKowns, and Skinner.

A jury trial resulted in a verdict and a trial court judgment against all defendants. All appealed. The Court of Civil Appeals affirmed. 270 S.W.2d 442.

The suit grew out of an automobile collision which occurred on East Avenue between 12th and 13th Streets, within the corporate limits of the City of Austin. East Avenue, between these two streets, had been for many years past a divided highway for one-way traffic, with north-bound traffic using the traffic lanes on the east side and south-bound traffic using the traffic lanes on the west side of a broad esplanade or parkway. At the time of the collision, however, the west side or south-bound traffic lanes were closed while 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 Skinner.

The plaintiff's automobile collided with an automobile being driven by one Carl Anderson who was not made a party to the suit. Mr. Anderson was traveling west on 14th Street and entered East Avenue at a point where it was a two-way street. 14th Street does not cross East Avenue at right angles, the point where it enters East Avenue from the west being some distance south of the point where it enters from the east. Ordinarily, one traveling west and wishing to cross East Avenue on 14th Street would enter the Avenue and turn south in two-way traffic until he reached the point where he could turn back west on 14th Street. Ordinarily, one traveling west on 14th Street and entering East Avenue from the east and wishing to travel south thereon would turn south and travel in two-way traffic to a point a short distance south of the western entrance of 14th Street where he would enter the south-bound, one-way traffic lanes. On the occasion in question, however, the entrance of 14th Street from the west and the entrance to the one-way, south-bound traffic lanes were closed with barriers. These barriers were erected originally by the City while laying sewers in the area and remained while the McKowns were carrying out their work.

On entering East Avenue Mr. Anderson turned south in the two-way traffic lanes, drove past the barred western entrance of 14th Street and past the barred entrance of the one-way, south-bound traffic lanes, entered the western lane of the one-way, north-bound traffic lanes and proceeded to the point of collision a short distance south of the eastern entrance of 13th Street. He had followed this route on other occasions after the erection of the barriers. At the time of the collision Mr. Schmedes was traveling north in the one-way, north-bound traffic lanes of East Avenue, in the western lane. The collision occurred near the crest of a hill, at a point where neither Mr. Anderson nor Mr. Schmedes could have observed the approach of the other for any great distance. The foregoing description of the streets and the point of collision can be better understood by referring to the diagram in the opinion of the Court of Civil Appeals. See 270 S.W.2d 445.

Liability of the defendants must rest on the following jury findings: 1. That the failure to provide directing signs for traffic entering East Avenue from the east on 14th Street was negligence which was a proximate cause of plaintiff's injuries, and 2. That the failure to provide a sign warning south-bound traffic not to enter the east roadway in the 1200 block of East Avenue was negligence which was a proximate cause of plaintiff's injuries. The jury absolved the plaintiff of negligent conduct, and found that the collision was not unavoidable and that Mr. Anderson's conduct was not the sole proximate cause thereof. The principal theory on which all defendants seek to be relieved of liability is that they were under no legal duty to the plaintiff to provide directional and warning signs at the places mentioned in the jury findings.

The City contends that the posting of directional and warning signs for the regulation and control of traffic is a governmental function and that it cannot be held liable for negligence in the performance of a governmental function. In support of its position it cites Baker v. City of Waco, Tex.Civ.App., 129 S.W.2d 499, no writ history; Parson v. Texas City, Tex.Civ.App., 259 S.W.2d 333, writ refused, and a number of other cases. The cases cited undoubtedly support the general proposition that the regulation and control of traffic in and by a municipality is a governmental function. All of them involve negligence in the maintenance of traffic lights. The negligence charged grew out of and was wholly incident to the performance of a governmental function.

The plaintiff seeks to predicate liability of the City on breach of its duty to post such directing and warning signs at the site of the street improvements as were reasonably necessary to protect users of the streets from dangers and hazards incident to the improvement. That the law imposes such a duty on a city is well settled; and it is equally well settled in this state that the duty is a nondelegable duty for the breach of which a city will be held liable in damages. Gabbert v. City of Brownwood, Tex.Civ.App., 176 S.W.2d 344, writ refused; Shuford v. City of Dallas, 144 Tex. 342, 190 S.W.2d 721; Patterson v. City of Austin, Tex.Civ.App., 29 S.W. 1139, no writ history; City of El Paso v. Mendoza, Tex.Civ.App., 191 S.W.2d 102, refused, W.M.; 39 Tex.Jur., Streets, § 121, pp. 690-691. See also McQuillin on Municipal Corporations, Third Edition, Vol. 19, § 54.17, pp. 77-80; 63 C.J.S., Municipal Corporations, § 785, p. 97. But we know of no Texas decision, and have been cited to none, that extends the duty of a city beyond protection of the user from physical defects or obstructions in or adjacent to the streets.

It thus appears that the Texas cases cited by the parties are not controlling of the precise question presented here, to wit: Does a city owe a duty to street users to warn them by signs of immediate dangerous conditions, other than physical defects and obstructions, created by the city in the performance of its proprietary function of improving its streets? We hold it does.

The City quotes language from the opinions in Auslander v. City of St. Louis, 332 Mo. 145, 56 S.W.2d 778, and Hanson v. Berry, 54 N.D. 487, 209 N.W. 1002, 47 A.L.R. 816, to the effect that the full extent of the duty of a city in fact situations like the instant case is to use ordinary care to protect users of streets against dangerous physical conditions in the streets, but in each of the cited cases the injury grew out of alleged negligence of the city in the performance of its strictly governmental function of regulating traffic and the language to which our attention is directed is much broader than the facts of the cases required for decision of the questions involved. A simple example will serve to illustrate that the language is much too broad. If a city engaged in a street improvement or maintenance project found it necessary, in moving materials from the place of supply to the place of use, to run its fleet of trucks over a city street counter to the flow of traffic in one-way traffic lanes, the danger to the public using the street would be from the vehicular traffic and not from what would ordinarily be called a defect or an obstruction in the street. Can it be though that the city would be under no duty to close that section of the street to public use? And if the section of the street so used were partially barricaded so as permit the passage of the trucks, a...