City of Fort Worth v. Holland

• Decision Date: 31 March 1988
• Docket Number: No. 2-87-095-CV,2-87-095-CV
• Citation: 748 S.W.2d 112
• Parties: CITY OF FORT WORTH, Appellant, v. Charles William HOLLAND, Appellee.
• Court: Texas Court of Appeals

Page 112

748 S.W.2d 112

CITY OF FORT WORTH, Appellant, v. Charles William HOLLAND, Appellee.

No. 2-87-095-CV.

Court of Appeals of Texas Fort Worth.

March 31, 1988.

Rehearing Denied April 28, 1988.

Wade Adkins, City Atty. and Terry A. Diveley, Asst. City Atty., Fort Worth, for appellant.

Weaver & Kassabian and David Kassabian, Arlington, for appellee.

Before HILL, FARRIS and LATTIMORE, JJ.

OPINION

FARRIS, Justice.

The City of Fort Worth appeals a judgment, based upon jury verdict, awarding the appellee property damages sustained as a result of a broken water main. In this case, the appellee relied upon the res ipsa loquitur doctrine to prove the City's negligence.

We reverse the judgment of the trial court and remand this case for new trial because the evidence was insufficient to establish that the City was negligent in failing to properly maintain its water main.

Before addressing the City's points of error complaining that there is alternatively no evidence or insufficient evidence to support the verdict and judgment for the appellee, we must consider the City's first and eleventh points of error.

Appellant's first point of error complains of the admission of a substantial part of the evidence offered by appellee in support of his case. Appellee's cause of action is one for damage to his residence which occurred when water from a broken water main cascaded onto the roof of his residence. The appellee introduced evidence of other water main breaks, which occurred in the same neighborhood as his residence. The City challenges the relevancy of the testimony and documentary evidence of the other water main breaks as not relevant. We overrule the City's first point of error because we find that the evidence of the other breaks was relevant and because the City did not timely object and preserve error for our consideration.

The evidence of other broken water mains was relevant because the proof of these similar breaks supported appellee's allegations that the City was negligent in improperly constructing, maintaining, and repairing the water main in question and in maintaining an excessive amount of water pressure on the water main in question. Proof that the City had experienced a number of similar water main failures at or near the water main break in question was relevant to appellee's effort to prove that the City of Fort Worth had not exercised ordinary care because of its actual notice of other failures and because it was a necessary part of appellee's proof in reliance upon the doctrine of res ipsa. Depending upon the facts of a case, evidence of other occurrences similar to that upon which the case is based may be relevant and admissible. See Missouri-K.-T. R. Co. v. May, 600 S.W.2d 755, 756 (Tex.1980).

Even if we were to agree with the City that the evidence of other water main breaks was extraneous and irrelevant to appellee's cause of action, we would be compelled to overrule the City's first point of error. The City did not preserve that point of error for appellate review because it failed to timely object to offers of testimony and documentary evidence of the other breaks. Three witnesses testified: a neighbor of the appellee; Lee Bradley, Deputy Director of the City of Fort Worth Water Department; and the appellee. Each of the three witnesses testified of other water main breaks, and appellee introduced into evidence City records of reported water main breaks and their repair. Much of the testimony of the other water main breaks was admitted into evidence without objection by the City. At one point the City did request a "running objection to all the questions of that type," but obtained no ruling of the court sustaining its request for a running bill. We recognize there is a line of cases expressing, as a general rule, that a party making a proper objection to the introduction of testimony of a witness, which objection is overruled, may assume that the judge will make a similar ruling as to other offers of similar evidence and is not required to repeat the objection. See Crispi v. Emmott, 337 S.W.2d 314, 318 (Tex.Civ.App.--Houston 1960, no writ). However, we believe that the rule expressed in Crispi and cases citing Crispi as authority is primarily limited to those instances where the similar evidence is elicited from the same witness. In this case where the appellee produced the testimony of three witnesses and documentary evidence about the other water main breaks, the applicable rule is that the City's objections to such evidence should have been repeated, and, in the absence of timely objections, any error was waived. See Badger v. Symon, 661 S.W.2d 163, 164 (Tex.App.--Houston [1st Dist.] 1983, writ ref'd n.r.e.); City of Houston v. Riggins, 568 S.W.2d 188, 190 (Tex.Civ.App.--Tyler 1978, writ ref'd n.r.e.); Kelso v. Wheeler, 310 S.W.2d 148, 150 (Tex.Civ.App.--Houston 1958, no writ). The City's first point of error is overruled.

The City's eleventh point of error complains that it was error to submit a res ipsa instruction because an underground water main break is not the type of incident to which the doctrine of res ipsa loquitur should be applied. We overrule the City's eleventh point of error because we find that the doctrine of res ipsa can be used to prove a case involving this sort of facts.

In connection with the submission of the special issue on negligence, the trial court instructed the jury:

INSTRUCTION: You are instructed that in answering this special issue you may infer negligence by a party, but are not compelled to do so, if you find that the character of the accident was such that it would not ordinarily happen in the absence of negligence and if you find that the instrumentality causing the accident was under the management and control of the party at the time the negligence, if any, causing the accident probably occurred. [Emphasis in original.]

The City relies upon the decision in City of Houston v. Church, 554 S.W.2d 242 (Tex.Civ.App.--Houston [1st Dist.] 1977, writ ref'd n.r.e.), as authority for the proposition that the doctrine of res ipsa loquitur is inappropriate to a case involving a water main break. In City of Houston v. Church, the plaintiff sought to recover for damages resulting from a water main break located under the plaintiff's building. The court held that the doctrine of res ipsa loquitur was not applicable because the fact that the water main began leaking under the plaintiff's building was not the character of evidence which would support a reasonable inference that the city was negligent in causing or permitting the leak to occur. Id. at 244.

The doctrine of res ipsa loquitur is a rule of evidence which is applicable when two factors are present: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality...