City of Dallas v. Muncton
| Decision Date | 05 November 1904 |
| Citation | 83 S.W. 431 |
| Parties | CITY OF DALLAS v. MUNCTON.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; Richard Morgan, Judge.
Action by J. W. Muncton against the city of Dallas. From a judgment for plaintiff, defendant appeals. Affirmed.
J. J. Collins and W. T. Henry, for appellant. W. H. Clark, for appellee.
J. W. Muncton instituted this suit in the district court of Dallas county against the city of Dallas to recover damages for alleged personal injuries. In his first amended original petition, upon which he went to trial, it was stated that on or about the 28th day of July, 1902, at or about 8:30 o'clock p. m., the plaintiff was driving in his buggy on Ross avenue, in Dallas; that when he reached a point on Ross avenue at or about the intersection of Texas street, his horse's front feet went into a deep hole in the middle of Ross avenue, said hole being where a sewer of the city of Dallas had lately been constructed, and the forefeet and legs of his horse sank into the hole, and the horse sank, fell, and was thrown down, and plunged and jerked to extricate himself from the hole, whereby plaintiff was thrown with great violence and force against the dashboard and front wheel of the buggy, and while endeavoring to get back into the buggy was thrown with great violence and force against the back of the buggy, and was seriously and permanently injured; that the defendant had a few weeks prior to his accident constructed one of its sewers at the place where plaintiff was injured, along and about the middle of Ross avenue, said sewer extending from Texas street east to Pavilion street; that after digging a deep ditch for said sewer and laying the sewer pipe therein, the ditch at said place where plaintiff was injured, in the middle of Ross avenue, was carelessly and negligently and only partially filled with loose and dry dirt, so as to leave or make or cause said hole in the middle of the street, as aforesaid, and this faulty, careless, and negligent construction of said sewer at the place where plaintiff was injured left Ross avenue in a defective and dangerous condition, and was the direct and proximate cause of plaintiff's injuries; that defendant was negligent in allowing said hole to remain in said condition, and to allow said hole to be made and to remain in the middle of said street; that the street was at that place and time in darkness. That no lanterns or any other warnings had been displayed, and plaintiff had no knowledge of the existence of the hole; that, as a result of his accident, plaintiff was seriously and permanently injured in various parts of his body, specifically named, was ruptured, caused to evacuate and expectorate blood, so weakened that he could not perform his usual labor, and suffered mental anguish— all to the amount of $10,000. In addition to this, he claimed $226 incurred for medical treatment of physicians. The defendant answered by special exception, general demurrer and denial, and special answer to the effect that the plaintiff was guilty of contributory negligence in failing to exercise proper care in the use of the street and avoiding the depressions, if there were any; that the street was well lighted, and the plaintiff could and would have kept away from the depression had he exercised any degree of care; that, if there was any defective place in the street, it was of a trivial character, and not of a nature from which any danger could have reasonably been anticipated by the city or its officers; that the defendant had no knowledge, either actual or constructive, of any defective condition in the street, if there was any; that the plaintiff was further guilty of contributory negligence in using the street at this point, if the same was in as defective a condition as claimed by him, in that there were a number of other streets parallel to Ross avenue which would have carried the plaintiff directly...
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