City of Fort Worth v. Lee, 14633.

Decision Date22 September 1944
Docket NumberNo. 14633.,14633.
Citation182 S.W.2d 831
PartiesCITY OF FORT WORTH et al. v. LEE.
CourtTexas Court of Appeals

Appeal from District Court, Tarrant County; A. J. Power, Judge.

Action by Mattie V. Lee, individually and as guardian of Victor Atkins, a minor, against the City of Fort Worth and another for injuries to the minor as the result of falling into a railroad cut while riding his bicycle, in which the Texas Employers' Insurance Association filed a plea in intervention. From a judgment awarding plaintiff damages against both defendants and denying the major part of the relief sought by intervener, defendants and intervener appeal.

Reversed, rendered in part, and remanded in part.

R. E. Rouer and Heard L. Floore, both of Fort Worth, for appellant City of Fort Worth.

John A. Kerr, Jr., of La Grange, and F. B. Walker and Luther Hudson, both of Fort Worth, for appellant Joseph B. Fleming, trustee of Chicago, R. I. & G. Ry. Co.

Todd, Crowley & Gambill, of Fort Worth, for appellant Texas Employers Ins. Ass'n.

W. H. Slay and Robert Harrison, both of Fort Worth, for appellee.

McDONALD, Chief Justice.

Victor Atkins, a fourteen year old boy, fell into a railroad cut about twenty feet deep while riding his bicycle. His mother, the appellee, maintains this suit to recover damages, both individually and as guardian of the minor. The City of Fort Worth, and the trustee in bankruptcy of the Chicago, Rock Island and Gulf Railway Company, are the defendants. Texas Employers' Insurance Association, by a plea in intervention, sues by reason of having paid out certain moneys as benefits under the Workmen's Compensation Act.

The jury, in answer to special issues, found both defendants guilty of negligence, and absolved Victor Atkins from contributory negligence. Judgment was rendered against both defendants, jointly and severally, $3600 being awarded to plaintiff individually, and $20,000 being awarded to her as guardian of the minor. Texas Employers' Insurance Association was denied the major part of the relief it sought. Both defendants and the intervener have appealed.

A total of forty-eight points of error are presented by the appealing parties, and all parties have filed in the aggregate some three hundred seventy-five pages of briefs and written argument. An opinion of some length is required to discuss the issues raised.

Victor Atkins was employed as a delivery boy for a drug store situated in the northern part of the City of Fort Worth. On the night of January 5, 1943, at about nine or ten o'clock, he was engaged in making a delivery in the area known as Fostepco Heights. At the point where Victor was injured the railroad runs in a northerly and southerly direction. North Twenty-ninth and North Thirtieth Streets run east and west. There is a railroad crossing on Twenty-ninth Street, but there is no crossing on Thirtieth Street. The area in question lies east of the railroad. Victor was riding west on Thirtieth Street, but thought that he was on Twenty-ninth Street, as he approached the railroad. Thirtieth Street terminates at the east line of the railroad right of way, and intersects North Pecan Street, which runs north from this intersection. Both streets are graveled. The graveled or improved portion of the roadway thus runs west along Thirtieth Street to a point near the railroad right of way, then turns north on Pecan Street. The railroad tracks near this intersection lie in a cut about twenty feet deep. From the western edge of the graveled or improved portion of the roadway there is a distance of about twenty-five feet to the east line of the railroad right of way, and there is a further distance of about thirty feet from the east line of the railroad right of way to the edge of the cut. As Victor rode west along Thirtieth Street, he failed to turn with the roadway north onto Pecan Street, but instead, thinking he was on Twenty-ninth Street which crossed the railroad, continued westward and fell into the railroad cut, suffering serious bodily injuries.

Plaintiff's theory of liability is that the location and appearance of the intersection of East Thirtieth and Pecan Streets were such as to be deceptive, and to cause Victor to believe that a crossing existed there, and that it was negligence on the part of both defendants to fail to provide barriers or warnings at or near the end of Thirtieth Street. The jury found both defendants guilty of negligence in such respects.

By written stipulation filed in the case the parties agreed: (1) The railroad acquired the right of way in fee in 1893, and during that and the following year constructed the railroad and excavated the cut. (2) The cut has remained in substantially the same condition since its completion prior to June 1, 1894. (3) The cut was made in accordance with sound engineering practice and was necessary in order that the track should be laid at such a grade that trains could be operated thereon. (4) Fostepco Heights, including the area here involved, was dedicated as an addition in 1907, and the written instrument of dedication filed in the Deed Records of Tarrant County specifically dedicates nothing west of the east boundary line of the railroad right of way, and specifically dedicates no street or thoroughfare across the railroad tracks, and specifically sets out that no street is dedicated across the right of way nor on the west side of the tracks. (5) Prior to such dedication there was no street, road or other public way at substantially the present locations of Thirtieth Street and Pecan Street. Thirtieth and Pecan Streets were laid out and graded between the years 1907 and 1912. (6) At the time the railroad was laid out and the cut excavated there was no road, street, or public way in the vicinity of what is now the intersection of Thirtieth and Pecan Streets, said adjoining property being vacant prairie or pasture land. (7) Neither Thirtieth nor Pecan Street has ever crossed the railroad right of way, nor is there any character of street or highway crossing at such point, nor any path across the tracks. (8) The accident to Victor Atkins occurred at a point where Thirtieth Street approaches but does not cross the railroad right of way. (9) Fostepco Heights, including the area embraced by Thirtieth and Pecan Streets, was duly and legally annexed to the City of Fort Worth in 1922.

Under its first three points of error the City urges that there was neither pleading nor proof that the City had notice of any cut, excavation, or hazardous condition on the property of the railroad such as would impose upon the City the duty of maintaining a barrier or warning. In City of Galveston v. Smith, 80 Tex. 69, 15 S.W. 589, 590, the rule is stated as follows:

"The basis of the action against a municipal corporation is negligence. Notice to the corporation of the defect which caused the injury, or facts from which notice thereof may be reasonably inferred, or proof of circumstances from which it appears that the defect ought to have been known and remedied by it, is essential to liability."

It was stipulated that the streets in question were graded and laid out between the years 1907 and 1912, that the railroad cut had remained in substantially the same condition since 1894, and that the area was annexed to the City in 1922. The stipulation would satisfy any lack of pleading of such facts as were agreed to in the stipulation. Miller v. Davis, 136 Tex. 299, 150 S.W.2d 973, 136 A.L.R. 177. The circumstances shown in the stipulation would imply constructive notice to the City as a matter of law. This was no temporary condition, like a hole in the street. It was a condition that had existed during the entire twenty-one years that the area had been within the city limits before the happening of accident in question.

The fourth point of error presented by the City complains of the following explanatory charge given to the jury:

"The Jury is instructed that Joseph B. Fleming, Trustee for Chicago, Rock Island & Gulf Ry. Co. had no authority whatsoever over the roads and streets in the City of Fort Worth, and such roads and streets are under the exclusive control of the municipal authorities, and Joseph B. Fleming, Trustee, and the railway company for which he was Trustee, had no control or authority over the establishment, location and grade of the streets within the City of Fort Worth."

Whatever may have been the rule applicable to such a charge before the adoption of our present rules of civil procedure, we believe that the charge was authorized by Rule 277, Texas Rules of Civil Procedure, which provides that the court shall submit such explanatory instructions and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on the special issues, and that in such instance the charge shall not be subject to the objection that it is a general charge. The only decisions cited by the City are those in which trial was had before the adoption of the present rules. The law of the charge, as applied to the facts of this case, appears to be correct. This case does not involve a crossing, where both the City and the railroad might owe duties with respect to so much of the street as lay within the crossing.

Under appropriate points of error it is questioned whether there is any evidence of liability on the part of either defendant, whether either defendant is entitled to judgment over and against the other defendant, and whether the evidence shows contributory negligence as matter of law on the part of Victor Atkins.

After much thought and consideration, we have concluded that the record shows no liability on the part of the railroad, and that the evidence raised jury issues as to the negligence of the City and the contributory negligence of Victor Atkins.

The railroad built its line and excavated the...

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