City of Beaumont v. Wiggins, 3567.

• Citation: 136 S.W.2d 260
• Decision Date: 05 January 1940
• Docket Number: No. 3567.,3567.
• Parties: CITY OF BEAUMONT v. WIGGINS et al.
• Court: Texas Court of Appeals

136 S.W.2d 260

CITY OF BEAUMONT v. WIGGINS et al.

No. 3567.

Court of Civil Appeals of Texas. Beaumont.

January 5, 1940.

Rehearing Denied January 17, 1940.

Appeal from District Court, Jefferson County; W. S. Nichols, Judge.

Action by Mrs. Frank Wiggins and husband against the City of Beaumont for injuries sustained by the named plaintiff by reason of alleged defect in pavement. Judgment for plaintiffs, and defendant appeals.

Reversed and cause remanded.

Geo. E. Murphy, City Atty., and E. B. Votaw, Asst. City Atty., both of Beaumont, for appellant.

Elton Cruse, of Beaumont, for appellees.

O'QUINN, Justice.

Mrs. Frank Wiggins joined by her husband, Frank Wiggins, sued the City of Beaumont to recover damages resulting from alleged personal injuries suffered by Mrs. Wiggins on August 28, 1937, by reason of a fall which it was alleged was occasioned by a defect in the pavement in block 1100 of Elgie Street in said city. Plaintiffs, among other things, alleged that on the occasion in question, while crossing the street she stepped into a hole which caused her to fall, causing her serious injuries. The trial was to a jury upon special issues upon the answers to which judgment was rendered in favor of plaintiffs for $3,500. This appeal is from that judgment.

In the court's charge defining "new and independent cause", as a part of said definition, this language was used: "unless the intervening cause is thus both new and independent, sufficient of itself to stand as the cause of the injury breaking the causal connection, the original wrong-doer is not relieved from legal responsibility for his wrong or negligence." It is insisted that this portion of the definition was a general charge and "caused the jury to be impressed with the effect of its answers to all issues involving proximate cause," which required a reversal of the judgment. The term objected to was used by the court in his definition of "proximate cause," and the definition of "new and independent cause" was given in explanation of same, as required under Article 2189, R.S.1925. It was not subject to the objection presented. It was neither a general charge, nor did it tend to inform the jury of the effect of their answers to the issue of proximate cause.

The first special issue submitted was No. A-1, which inquired as to whether on August 28, 1937, there was a large and deep hole in the 1100 block on Elgie Street, which was answered "Yes." Just before this issue was the charge: "You are instructed that the defendant is not an insurer of the safety of persons passing along the street, but is only obligated to keep said streets in a reasonably safe condition for the safety of persons passing thereover." Later in the charge was submitted special issue No. D-3, as follows: "Do you find from a preponderance of the evidence that the street where Mrs. Wiggins received her fall and injury, if any, at the time of and just prior to said fall and injury, if any, was not reasonably safe for travel thereover by persons exercising ordinary care?" The jury answered, "Street was not reasonably safe." The charge that the defendant was not an insurer of the safety of persons passing along the street, but was obligated only to keep the streets in a reasonably safe condition, was objected to by appellant on the grounds that it was a general charge and informed the jury of the effect of their answer for in that if they found that the street was in a reasonably safe condition they would know that Mrs. Wiggins could not recover. We are constrained to believe that the charge was a general charge. It was not given in connection with any special issue or in explanation of any words or term used in the submission of any such issue. Appellee says that the charge was given because in a former trial of the case appellant excepted to the court's charge because the instant charge was not given, and in order to avoid a similar exception, it was given and hence it should be considered as invited error if held to be error. We do not believe that it can be thus justified. What may have occurred at another and different trial was not here involved, and, too, on further study counsel for appellant may have, and it appears did change his mind as to the correctness of the charge. It could have been eliminated upon the exception and appellant could not have consistently objected for it would have been done at his insistence. Being a general charge, it was error, and we are unable to say that it was harmless. Texas & N. O. R. Co. v. Crow, 132 Tex. 465, 123 S.W.2d 649. Humble Oil & Refining Co. v. McLean, Tex.Com. App., 280 S.W. 557; Stokes v. Snyder, Tex. Com.App., 55 S.W.2d 557.

A number of other assignments are presented but as the matters there complained need not occur upon another trial, we will not discuss them. However there is one we think should be considered for the benefit of the court and the parties. Special issue No. A was submitted, as follows:

...