City of Dallas v. Meyers

• Decision Date: 03 February 1900
• Citation: 55 S.W. 742
• Parties: CITY OF DALLAS v. MEYERS et al.
• Court: Texas Court of Appeals

55 S.W. 742

CITY OF DALLAS v. MEYERS et al.

Court of Civil Appeals of Texas.

February 3, 1900.

Appeal from district court, Dallas county; Richard Morgan, Judge.

Action by Martha D. Meyers against the city of Dallas and John Hermann. From a judgment for plaintiff against the city and in favor of Hermann, the city appeals. Reversed as to the city. Affirmed as to defendant Hermann.

This is a suit against the city of Dallas and John Hermann for damages alleged to have been sustained by a fall on the sidewalk in the city, alleged to have been in a defective and dangerous condition, through negligence of defendants, causing the fall and consequent injuries. John Hermann was owner of the lot abutting the sidewalk, and the city sought to recover over against him for failing to keep the sidewalk in repair, in case it was held liable to the plaintiff. On the trial the plaintiff had judgment against the city, but no judgment was obtained against Hermann by either the plaintiff or the city. The city alone has appealed. We find as facts, from the evidence, that John Hermann did not trespass upon the sidewalk, did nothing to put it in a defective and dangerous condition, and was guilty of no negligence causing or contributing to the injury of the plaintiff.

W. P. Ellison and T. A. Work, for appellant. O. N. Brown, for appellees.

FINLEY, C. J. (after stating the facts).

1. It is urged that the city cannot be held liable for personal injuries sustained by reason of defective condition of sidewalks, for the reason that it is not the duty of the city to construct, maintain, and keep sidewalks in repair. This contention is based upon the theory that the charter provides that the cost of constructing and keeping sidewalks in repair shall be borne by the owners of lots fronting on such sidewalks, and that the city is without adequate means and power to enforce the payment of such costs by such abutting owners. This proposition was urged before us in City of Dallas v. Jones, 54 S. W. 606, and decided adversely to appellant. Our decision was affirmed by the supreme court, and we see no reason to doubt the correctness of that decision. Id., 53 S. W. 377.

2. The refusal of special charge No. 3 is complained of. This charge made it essential to the liability of the city that the city, or some of its officers or agents, had been given actual or constructive notice of the defects in the sidewalk a reasonably sufficient time previous to the injury to have repaired the sidewalk. It also defines constructive notice. The general charge embraces the special charge fully, except that it speaks alone of notice to the city, and says nothing of the officers and agents of the city. In this same connection, the refusal of the fifth special charge is claimed to be error. This instruction bears mainly upon the measure of responsibility of the city and the issue of contributory negligence, but it also requires notice of the defect, either actual or constructive, to the street superintendent or the mayor and aldermen of the city, in order to render the city liable. Contributory negligence on the part of the plaintiff was specially pleaded. The court gave no distinct charge upon this issue. The charge required that she must have been exercising ordinary care, and was injured without negligence on her part. Neither the term "negligence" nor "ordinary care" was defined by the charge. The issue of contributory negligence being made by the pleadings, and a charge requested on that issue, unless the evidence was such as justified the exclusion of such issue it should have been properly submitted to the jury. Upon a careful examination of the evidence, we are of the opinion that it was not such as authorized the court to withdraw the issue from the jury. The legal propositions urged under these assignments relate to the failure to charge what officers of the city represented the city in the matter of such notice; that is, that the jury should have been told that actual notice could be visited upon the city only by showing notice to the street superintendent or the mayor and aldermen. There was a special charge also asked to the effect that notice to Officer Tanner, a policeman, would not be notice to the city. There was evidence that Policeman Tanner had knowledge of the condition of the sidewalk for a considerable time prior to the injury of the plaintiff. The court should have told the jury that actual notice upon the city could be shown by proof of such notice to any officer having authority to act, or to cause action to be taken, or whose duty it was to report the matter to some officer with authority. Notice to an officer who had no authority in the premises, and who was charged with no duty in relation to such matter, would not effect the city with notice. 2 Dill. Mun. Corp. (4th Ed.) § 1025; City of Austin v. Colgate (Tex. Civ. App.) 27 S. W. 896; Dundas v. City of Lansing, 75 Mich. 499, 42 N. W. 1011, 5 L. R. A. 143. Under the evidence in this case, the charge should not have named the particular officer or officers whose knowledge would effect the city with notice.

3. It is urged that the charge permitted a recovery for increased injury resulting from the maltreatment of the attending physician, provided plaintiff exercised reasonable care to select a competent physician, and followed such physician's directions as to treatment, and that this was error. The proposition...