City of Beaumont v. Henderson

• Decision Date: 15 June 1961
• Docket Number: No. 6410,6410
• Citation: 349 S.W.2d 301
• Parties: CITY OF BEAUMONT, Appellant, v. Velma HENDERSON, Appellee.
• Court: Texas Court of Appeals

Page 301

349 S.W.2d 301

CITY OF BEAUMONT, Appellant, v. Velma HENDERSON, Appellee.

No. 6410.

Court of Civil Appeals of Texas, Beaumont.

June 15, 1961.

Rehearing Denied Aug. 15, 1961.

King, Sharfstein & Rienstra, George E. Murphy, City Atty., Beaumont, for appellant.

Alto V. Watson, Beaumont, for appellee.

HIGHTOWER, Justice.

Velma Henderson, a feme sole, recovered judgment of $16,740 against the City of Beaumont by reason of personal injuries she received as a result of a fall when she stepped into a hole in a public sidewalk in Beaumont, Texas. Trial was to a jury which found, in substance, in answer to (Issue No. 4) that the defect in the sidewalk where plaintiff fell was not trivial; (Issue No. 5) that the defect had existed for sufficient length of time prior to the accident for the City, in the exercise of ordinary care, to have known of the same and repaired it; (Issue No. 6) that the City was negligent in allowing the said defect to exist for such period of time; (Issue No. 7) that such negligence was a proximate cause of plaintiff's injuries; (Issue No. 13) that the defect was not so slight and trivial in character that an injury therefrom could not have been reasonably anticipated by an ordinarily prudent person. The City predicates its appeal upon its motion for instructed verdict and amended motion for new trial, both of which were overruled by the trial court, and both of which fully embraced the points of error relied upon by the City here. Under those of the first 18 points which are briefed, the essence of the City's contentions is that the defect in the sidewalk was so trivial that it had no duty to repair the same and therefore no liability existed as a matter of law.

Recounting some of the pertinent testimony, after appellee left her place of work on October 25, 1955, she was walking in a generally easterly direction on the sidewalk adjacent the Morgan & Lindsey store on the north side of Forsythe Street in the City of Beaumont when her right heel went down in a hole throwing her to her left side onto the sidewalk. She was wearing wide heels from 1 1/2 to 2 inches in height and her whole heel went into the hole which was deeper than the heel of her shoe. This was about 5:45 p. m., it was a rather cloudy day, the street lights were on and it was rather dark. There were many people walking along there because all of the stores had just turned out. People were walking in both directions.

The sidewalk at this point was estimated by appellee as being 12 feet in width from the Morgan & Lindsey building to the curb. Parking meters were near here about two or three feet from the curb. At the time she fell, appellee was walking on the north side of the parking meters on the right hand side of the sidewalk going east, about two feet from the parking meters. After she fell, two men from Morgan & Lindsey came out of the store and brought her a chair when they saw that she was in pain and screaming. After she sat down in the chair, she wanted to see what happened and there was a hole there and it was filled with broken cement and gravel. She looked at it because she wanted to know why she fell. She described the hole she saw as being in the shape of a triangle about 6 or 8 inches on either side and two or two and a half inches deep, and again as being 5 or 6 inches along each side. She testified that she did not see the hole before she stepped into it.

Two photographs, one facing east and one facing west, were introduced into evidence by counsel for appellee showing substantially the condition of the sidewalk at the time she fell there. She drew a circle with a white pencil around the triangular hole on both pictures into which her right foot stepped. She testified that regardless of whether she estimated the size of the hole to be 6 or 8 inches or two feet, whatever her estimate was, the triangular hole she circled on the photographs is the hole into which her heel stepped.

We believe it to be a fair and correct statement of the record to say that it is therein overwhelmingly established that the defect in question had existed in substantially the same condition for at least 19 months prior to the date of injury, and that the City, through its agents, servants and employees, knew of such defect or that by the use of reasonable diligence should have known of the same. Moreover, the record establishes without dispute that for the 7 or 8 years next preceding the date of the injury the City had consciously disavowed any duty or responsibility for the repair and maintenance of its sidewalks and had consistently declined to attend them.

In support of its contention of no liability as a matter of law, the City urges the cases of City of Galveston v. Dazet, Tex., 19 S.W. 142; Stinnett v. City of Waco, 1944, 142 Tex. 648, 180 S.W.2d 433, and City of San Antonio v. Chabot, Tex.Civ.App.1958, 318 S.W.2d 485, ref. n. r. e., as controlling. The appellee relies heavily on City of Houston v. Cambeilh, Tex.Civ.App.1960, 333 S.W.2d 192, ref. n. r. e. In the Stinnett case the sidewalk block was broken and elevated 1 3/4 inches. Plaintiff 'caught' her heel on the broken block. The defect was on a heavily traveled residential sidewalk. The Supreme Court affirmed a judgment which held the defect to be trivial as a matter of law. In the Dazet case, plaintiff was driving a two-wheel cart when one wheel was caught by a metal surveyor's monument which projected less than 2 inches above the street surface. The cart was caught and damaged thereon and the defect was held to be trivial as a matter of law. The Chabot case involved a small hole in a sidewalk in downtown San Antonio in which plaintiff caught her heel and fell. The hole was less than one inch deep after the dirt and debris had been removed. The court, following the Stinnett case, held that hole to be trivial as a matter of law. In the Cambeilh case the accident happened on a corsswalk in the street at the intersection of Main and McKinney Streets in downtown Houston. The hole in the crosswalk which caused plaintiff's fall was, according to the minimum measurements given by any witness, as much as 2 inches deep, 4 inches wide and 7 inches long. The court concluded it could not be said, as a matter of law, under all the facts and circumstances that the City could not reasonably foresee that a pedestrian would not be injured. So, we are confronted with the situation where one well reasoned opinion, mindful of the rule laid down in the Stinnett case, concludes that a hole 2 inches deep, 4 inches wide and 7 inches long is an issuable fact for a jury's determination; one holding that less than a 2 inch projection of a surveyor's pipe in a city street is not; one that a 1 3/4 inch elevation of a sidewalk section is not and a similar holding in regard to a small hole less than one inch deep in a sidewalk. However, it needs only a cursory examination of the cases cited to determine that they are not arbitrary holdings, but rest upon strong and careful reasoning. Each recognizes the cardinal principles of law on which the answer to the question before us must rest, namely: (1) a municipality must exercise ordinary care in constructing reasonably safe sidewalks and streets and in maintaining them, but it is not an insurer of the safety of those places and it is only where the defect is such that a reasonably prudent man would not permit it to continue, because likely to produce hurt, that liability exists. (2) The depth or height of a defect cannot alone be the test of a municipality's negligence and is only one element to be considered along with all other facts and circumstances in determining liability.

The Cambeilh case, supra, is not distinguishable from the Chabot case, supra, by reason of the fact that the defect in one instance existed in a public sidewalk while in the other it existed in a crosswalk of a public street. 'Obviously the same rule is applicable to a sidewalk that is applied to a street. * * * Nor can a general rule be laid down that will properly fit all cases. Each case must be considered under its own peculiar facts.' Stinnett v. City of Waco, supra, 180 S.W.2d at page 434.

In addition to the testimony of appellee, hereinabove, the two photographic exhibits heretofore referred to depicting the defect as it existed on the date of the accident, October 25, 1955, were testified to by Mr. Wilson, witness for appellee, as substantially portraying the defective condition of the sidewalk as it existed for approximately 19 months up to the date of the accident. The photographs in question, substantiated by ample testimony, reflect that the hole which caused appellee's fall was actually only a small portion of a much larger defect which stretched across the full 12 feet of the sidewalk in question. Mr. Wilson further testified that in March, 1954, he had himself stepped into a portion of this aperture and came very near falling. He stated that in a part of this larger defect stretching across the sidewalk, a foot or two from the hole in which appellee stepped, there was a larger hole that he could have gotten half of his leg into. From an examination of these photographs, this latter statement of Mr. Wilson appears to be somewhat exaggerated, but such statement does, we think, correctly accentuate the overall need of repairs of the sidewalk at the place in question.

Additionally, Mr. D. H. Smith, employed by the City as Maintenance Supervisor, part of his duties being general supervision of sidewalks, testified, in substance, that had he observed the hole of no larger than 6 inches wide and no more than 2 inches in depth in October of 1955 he would have caused it to be repaired as he recognized the danger of a person wearing high heels getting the heel caught in a crack that wide and falling and hurting himself.

Another fact which the City urges us to consider is that inasmuch as there are more than 250 miles of sidewalks in it that to hold it...