City of Fort Worth v. Lee

Decision Date11 April 1945
Docket NumberNo. A-377.,A-377.
Citation186 S.W.2d 954
PartiesCITY OF FORT WORTH et al. v. LEE.
CourtTexas Supreme Court

This is a suit for damages for personal injuries brought by Mattie V. Lee, for herself and as guardian of Victor Atkins, the injured party, against the City of Fort Worth and Joseph B. Fleming, trustee for the Chicago Rock Island & Gulf Railway Company. Texas Employers' Insurance Association intervened to recover benefits paid the injured party under the workmen's compensation statutes. On jury findings the trial court rendered a judgment unsatisfactory to the city, the railway company and the insurance association. The court of civil appeals reversed that judgment and rendered it for the railway company and remanded the cause as to the city and the intervenor. 182 S.W.2d 831. Mrs. Lee, the city and the insurance association are petitioners here.

Victor Atkins, 14 years old, was working as delivery boy for a drugstore in Fort Worth. Returning from a delivery, between 9 and 10 o'clock on the night of January 5, 1943, and thinking he was on 29th Street, he was riding his bicycle west on 30th Street, when he went over a bluff caused by the digging of a cut for the tracks of respondent railway company, which passed north and south near the end of 30th Street. He fell about 20 feet and landed between the tracks, sustaining serious injuries.

The right of way was acquired by the railway company in 1893. The cut into which the boy fell was excavated in 1894 in accordance with sound engineering practice to make the grade such that trains could be operated thereon. Continuously from 1894 until the accident it remained in its original condition.

Fostepco Heights was dedicated as an addition to Fort Worth in 1907 but was not formally annexed until 1922. The dedication showed that the addition was bounded on the west by the railway right of way and that no street was dedicated on or across the right of way. Accordingly, 30th Street ended at the east line of the right of way, at which point the thoroughfare turned north parallel with the right of way and was known as Pecan Street. Between 1907 and 1912 the two streets were laid out and graded, "but prior to October 16, 1907, there was no street at the present location" of either 30th Street or Pecan Street, "nor was there any road or other public way at substantially the same locations." When the railroad track was laid and the cut excavated, there was no road, street, or other public way in the vicinity. At the time of the accident there was a railroad crossing on 29th Street, but there was no street, highway or path across the railroad from the point where 30th Street intersected the right of way.

It was 25 feet from the closest part of the traveled roadway of 30th and Pecan Streets to the eastern boundary line of the right of way. A shoulder, 6 or 7 inches high, marked the western line of this roadway 55 feet from the bluff over which Victor Atkins rode his bicycle. Of this 55 feet the first 40 descended 4 feet and the remaining 15 descended 3½ feet to the bluff. The area was a weedy, rough and rocky native soil. 30th and Pecan Streets were graveled.

The plaintiff alleged that Victor Atkins' injuries were proximately caused by the negligence of both the city and the railway company in not having a sign at the point where 30th Street turned into Pecan and in not having a barrier either at that point or at the end of 30th Street in the right of way and by the negligence of the city alone in other particulars.

By cross-action against the railway company the city alleged that if Victor Atkins' injuries were due to the negligence of any defendant they were caused solely by the negligence of the railway company in maintaining the cut without warning of its presence or keeping a barrier, which negligence was active and primary, and that its own negligence, if any, was merely passive; therefore, in the event of judgment against the city in favor of plaintiff, it was entitled to judgment over against the railway company.

The trial court adjudged the defendants jointly and severally liable. The court of civil appeals held that the duty to protect travelers from dangers resulting from the manner of constructing and maintaining its streets was upon the city and that if it chose to maintain a street in a dangerous location the railway company could not prevent it, hence the latter was not liable. The city attacks that holding.

We have decided that the court of civil appeals correctly rendered judgment for the railway company. The controlling principle of law is clearly stated in Restatement of the Law of Torts, vol. II, sec. 368:

"A possessor of land who creates or maintains thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact therewith while traveling with reasonable care upon the highway, is subject to liability for bodily harm thereby caused to them.

* * * * * *

"a. * * * In order that the rule stated in this Section shall apply, the condition * * * must have been created by the possessor or his predecessor in possession or by some one acting on their behalf or by their permission after the highway has been dedicated. * * *

"b. When highway built near excavation. If a highway is established in close contiguity to an excavation or other dangerous condition upon the possessor's land, whether constructed by him or otherwise created, the duty to guard such dangerous condition is upon those who are charged with the duty of maintaining the highway in a reasonably safe condition for travel and not upon the possessor of land upon which the dangerous condition is situate.

* * * * * *

"e. The rule stated in this Section does not impose any duty upon a possessor of land to remove or guard dangerous conditions which existed at the time the highway was dedicated. * * *

"Illustration: 4. A is the possessor of land upon which there is a deep quarry. A highway is laid out and established running along the edge of this existing quarry. It is the duty of the municipality maintaining the highway for public travel, and not of A, to erect and maintain fences or other guards to protect travelers upon the highway." (Italics ours.)

In 25 Am.Jur., Highways, sec. 530, p. 812, it is said that the general rule has been held inapplicable in cases where the danger results from conditions existing at the time of the construction of the highway.

In the annotation appearing in 14 A.L.R., at page 1412, it is said: "An erection or excavation already existing, and not otherwise unlawful, does not become unlawful when the land to which it is immediately contiguous is dedicated to the public as a way, although it prevents the way from being as safe as it otherwise would have been."

Other authorities to the same effect are Galiano v. Pacific Gas & Elec. Co., 20 Cal. App.2d 534, 67 P.2d 388; State v. Society for Establishing Useful Manufactures, 44 N.J.Law 502; Morris v. Mills et al., 121 S.C. 200, 113 S.E. 632, 36 A.L.R. 302; Harvell v. City of Wilmington, 214 N.C. 608, 200 S.E. 367; Overton's Adm'r v. City of Louisville et al., 221 Ky. 289, 298 S.W. 968; Shearman & Redfield On the Law of Negligence (6th Ed.), vol. 2, sec. 343, p. 876.

The facts in Harvell v. City of Wilmington, supra, closely parallel those in this case. Second Street in the City of Wilmington came to a dead end at the edge of the railroad right of way. At that point was a concrete retaining wall about five feet above the level of the railway property and about one foot above the street level. The plaintiff was riding at night in an automobile driven by another, who, thinking he was on Third Street on the way to plaintiff's home, drove down Second Street and over the wall onto the right of way. At the conclusion of the testimony the trial court nonsuited the railway company and submitted the case to the jury only as to the city. In affirming that action, the Supreme Court of North Carolina said [214 N.C. 608, 200 S.E. 369]: "The evidence fails to disclose with any degree of certainty whether the retaining wall at the end of Second Street is on railroad property. It does not disclose with any considerable degree of certainty the party who constructed the wall. It does show, however, that there is a cold storage plant on the north side of Second Street adjacent to the railroad property and that the wall was built at the same time the cold storage plant was constructed, seemingly as an extension of the foundation wall of the cold storage plant building. It further discloses that this retaining wall was constructed in 1912 and that at that time Second Street from Red Cross Street north had not been paved; that this section...

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