City of Fort Worth v. Hill, 15843
| Decision Date | 18 October 1957 |
| Docket Number | No. 15843,15843 |
| Citation | 306 S.W.2d 817 |
| Parties | The CITY OF FORT WORTH, Texas, Appellant, v. Robert L. HILL et ux., Appellees. |
| Court | Texas Court of Appeals |
R. E. Rouer, S. G. Johndroe, Jr., Robert R. Goodrich, G. Gordon Whitman, Earl C. Morgan, and John Gano, Fort Worth, for appellant.
Mackin & King and Hugh F. King, Fort Worth, for appellees.
From a judgment for the plaintiffs in a suit for damages by Robert L. Hill et ux. against the City of Fort Worth growing out of personal injuries sustained by Mrs. Hill as the result in stepping into an insufficiently covered water meter box in front of a provate residence, the defendant City appeals.
Judgment affirmed.
Appeal in the present instance was from the order of the trial court overruling the City's motion for instructed verdict and motion for judgment notwithstanding the verdict. In other words, the appeal was taken without abiding by the ordinary prerequisite therefor furnished by a motion for new trial, and instead the City appealed directly from the order as is allowed by Texas Rules of Civil Procedure, rule 324.
We find no precedent in any case, but we are of the opinion, and so hold, that in view of the nature of the appeal taken our jurisdiction in the premises must be confined to the propriety of the action taken by the trial court upon the motion for judgment notwithstanding the verdict. Under such a holding we would be obliged to disregard any points relative to errors of law committed during the course of the trial, including errors of the trial court in refusing to submit specially requested issues of the defendant City, and errors claimed as to the issues submitted. It seems that we are confined to the evidence and to the pleadings supporting the same in a test of whether the City was entitled to an instructed verdict in its behalf or to a judgment notwithstanding the verdict based thereupon. To consider error otherwise assigned would be to review actions of the court below which it should properly have the first opportunity at correcting before any possible disturbance by an appellate court other than, of course, for fundamental errors. Under T.R.C.P. 324 and 325, such errors as could have been obviated by the granting of a motion for new trial by the trial court other than in instances prescribed by T.R.C.P. 324 are not preserved upon appeal where taken without such a motion. Since the City rested simultaneously with the plaintiffs at the conclusion of plaintiffs' case, the question posed is as to whether plaintiffs made out a prima facie case entitling them to go to the jury. This they have done if the defect culminating in Mrs. Hill's injuries was shown to have arisen through the City's negligence.
The evidence showed that Mrs. Hill's accident occurred at approximately 9:30 o'clock in the evening. The automobile from which she alighted was parked at the curb in front of a friend's home and she stepped therefrom safely upon the grass between the curb and the sidewalk (or where the sidewalk would have been). Then she turned to close the door of the automobile and stepped upon the water meter cover. The cover was circular. Her weight upon the foot on the cover caused the cover to tilt, resulting in her foot and leg going down into the water meter proper. It was her right foot which went into the hole of the water meter box, and she fell forward. She sustained injuries to her right leg and other injuries, damages for the allowance of which are not attacked as being without support of pleadings or evidence.
The evidence further showed that a man was observed between 2 o'clock and 2:15 o'clock in the afternoon of the same day 'doing something with the meter box.' This was the same box into which Mrs. Hill fell that evening. It was not shown just how the man arrived, but a pickup truck bearing a sign or label 'City of Fort Worth' was parked near the meter box. After the completion of whatever was being done by the man, he was seen to get into this truck and drive away. No other person was in the truck. Subsequent to the occasion no other persons, adults or children, were observed by any one in the vicinity of the meter box. Evidence disclosed that there was opportunity, however, for other persons to have been in such vicinity without having been observed.
It was stipulated by the parties that the...
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