City of Dallas v. Maxwell

• Decision Date: 27 April 1921
• Docket Number: (No. 1800.)
• Citation: 231 S.W. 429
• Parties: CITY OF DALLAS v. MAXWELL et ux.
• Court: Texas Court of Appeals

Page 429

231 S.W. 429

CITY OF DALLAS v. MAXWELL et ux.

(No. 1800.)

Court of Civil Appeals of Texas. Amarillo.

April 27, 1921.

Rehearing Denied June 1, 1921.

Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.

Suit by B. G. Maxwell and wife against the City of Dallas. From judgment for plaintiffs, defendant appeals. Affirmed.

Jas. J. Collins, W. S. Bramlett, Allen Charlton, and Carl B. Callaway, all of Dallas, for appellant.

W. D. Cardwell, of Burkburnett, and McCutcheon & Church, of Dallas, for appellees.

HALL, J.

Mrs. Laura Maxwell, joined by her husband, sued the appellant to recover $25,000 damages as the result of personal injuries charged to have been sustained by her by reason of the negligence of said city. It is alleged, in substance, that on or about December 9, 1916, she was a passenger in a motor bus, commonly known as a jitney, which was being operated along Carlisle street, in said city, and that, at the time of the accident which occasioned the injuries complained of, the bus was being driven at a rate of speed not to exceed 15 miles an hour; that, several years prior to the above-named date, the city had built and constructed at the intersection of Carlisle and Vine streets a concrete or stone culvert, and had constructed, built, and maintained sidewalks and curbing along Carlisle street, at the intersection of Vine street, and that the construction of said culvert was on account of a deep ravine where Vine street ended; that defendant so constructed the culvert and fill in Vine street as to raise the intersection of said streets to the level of Carlisle street on each side of the ravine; that said city owned, maintained, and controlled the ravine where Vine street ended. It appears that Carlisle street runs approximately east and west at the place of the accident; that Vine street extended from the south ends at Carlisle street; and that, on the north side of Carlisle street, at the point where Vine street intersects it and ends, the ravine is approximately 50 feet deep.

Plaintiffs further allege that at all times since the construction of said fill, culvert, sidewalks, and curbs at and near the place, and for more than 24 hours prior to December 9, 1916, defendant had notice of the open and dangerous condition of the street, curb, sidewalks, fill, culvert, and ravine; that for a long time prior thereto said city had negligently and carelessly left said streets, curbs, sidewalks, culvert, fill, and ravine open and exposed, and had negligently and carelessly constructed and maintained the same in an open and exposed condition, to such an extent that said streets, sidewalks, culvert, fill, and ravine were openly and notoriously dangerous to persons and vehicles using said streets; that by the exercise of ordinary care the city could have made said place safe; that the mayor and city engineer knew of its dangerous condition, or by the exercise of ordinary care and diligence could have known, and by the use of ordinary care and diligence could and would have provided suitable curbs, guards, or rails to prevent accidents and injuries to persons and vehicles using said streets; that by failing to use such care the said city was negligent, and that its negligence was the proximate cause of the injuries sustained by the plaintiff, Mrs. Maxwell; that the city had permitted a large pole to be erected in said street near said gulch, which said pole was exposed, and not protected by any curbing; that on the west side of said Carlisle street, where Vine street ended, said ravine was from 40 to 50 feet deep, and extended almost to the width of Vine street; that the curb along the west side of said Carlisle street did not extend to a point even with the east line of Vine street, if extended, but only to within 8 or 10 feet of said east line; that there was no curb on the west side of Carlisle street opposite to where said Vine street ended, and no sidewalk there save and except a string of three boards or planks, which were practically on a level with said streets; that from the west side of said board walk, and from 2 to 4 feet to the west of said walk, there was a precipice going down into said ravine which extended along the west side of Carlisle street, nearly the width of Vine street, and that said precipice was wholly unguarded, and without barriers, railing, or curb of any kind to prevent persons and vehicles from falling into said ravine; that at the intersection of said Vine and Carlisle streets, as aforesaid, the said city ordinarily maintains a street light, and at the hour of the accident, to wit, about 6:30 p. m. of said day, said street light was not burning, in consequence of which the streets were dark, and by reason thereof the driver of the motor bus could not and did not see said pole into which his motor bus ran, and on account of the failure of said city to have said lights burning, and on account of the negligence of said city in failing to construct and maintain a curb at that point, and its failure to construct and maintain a barrier to prevent said automobile from running into said ravine, its negligence was the proximate cause of the injuries; that when said motor bus came within a few feet of the east line of Vine street, and on the right-hand side of Carlisle street, the driver of said motor bus lost control of the vehicle, and the front part of the right-hand side of the bus struck the pole, which stood about 4 inches within the curb line of said street, swerved to the right, and, when it cleared said pole, it went over said board walk, down into the ravine, and turned over, thereby injuring the plaintiff, Mrs. Maxwell. She alleges her injuries to be as follows:

"That at the time of said accident Mrs. Maxwell was a strong, healthy, married woman, 30 years of age; that by reason of the accident she suffered the following injuries: Both the upper and lower jawbones were broken; her nose was mashed, bruised, and broken; some of her teeth were knocked out, and some broken off; the bone of her nose running to the base of the brain was broken and fractured, and on account of the breaking of said bones in her jaws and nose, and the breaking off and knocking out of her teeth, her face has been permanently disfigured, from which she has suffered great and excruciating physical pain and mental anguish; and said injuries are of a permanent nature, and she has, and will continue through her natural life, to suffer great physical pain and mental anguish, mortification, and humiliation; that her limbs were mashed and bruised and lacerated; her hips and spine were mashed, bruised, and made sore, from which she has suffered great physical pain and mental anguish; that she suffered internal injuries of the womb, ovaries, stomach, bowels, intestines, and female organs, which said injuries are permanent, and from which the said Mrs. Maxwell will suffer through her natural life, all to her damage in the sum of $20,000."

By trial amendment, plaintiffs pleaded actual notice to the mayor and city engineer of the city of Dallas of the defects in the streets causing the accident, alleging that said actual notice was given more than 24 hours prior to the accident. The city answered with a general demurrer, certain special exceptions, a general denial, a plea of assumed risk, contributory negligence, and interposed the two-year statute of limitations as to the claim for certain expenses.

The cause was submitted to a jury on special issues, in reply to which the jury found: (1) That the failure of the city in not having a sufficient and adequate guard or barrier along the north line of Carlisle street, at the place and time of the accident, was negligence; (2) that said negligence was the proximate cause of the accident and injuries complained of; (3) that the driver of the bus in which Mrs. Maxwell was riding was negligent in the operation of the vehicle; (4) that at and just prior to the accident the steering gear on the bus was so defective that the driver could not control and guide it; (5) that his negligence was not the proximate cause of the accident complained of; (6) that the negligence of the city, concurring with the negligence of the driver of the bus, was the proximate cause of the accident. In connection with the sixth special issue, the court charged the jury as follows:

"In passing upon the foregoing special issues, you are instructed that, by the term `concurrent proximate cause,' as used in the above special issue, is meant such act as is wanting in ordinary care, which activity aided in producing the injury, and such act as might reasonably have been contemplated as involving the result under the circumstances."

The jury further found: (7) That, at the time she entered the jitney, Mrs. Maxwell did not know, fully appreciate, and understand the dangers incident to the use or attempted use by vehicular traffic of Carlisle street at its intersection with Vine street. Special issues 8, 9, and 10 relate to the amount of damages sustained. The trial resulted in a verdict for plaintiffs in the sum of $11,200, and interest from January 20, 1920, at 6 per cent. Plaintiff filed a remittitur of $625, and judgment was rendered against the city in the sum of $10,575.

The first error is assigned to the action of the court in refusing to direct a verdict for the city. Under this assignment appellant presents its first proposition, as follows:

"The alleged actionable negligence upon which appellees rest their cause of action are that: (1) There was no curb on the west side of Carlisle street, where Vine street ended; and (2) the ravine or precipice next to the west line of Carlisle street at the end of Vine street was unguarded. Viewed in the most favorable light for appellees, the evidence shows that appellant is not legally liable to appellees for the injury sustained by Mrs. Maxwell, due to the descension of the jitney into the ravine, notwithstanding the want of a...