City of Fort Worth v. Ware

• Decision Date: 05 November 1927
• Docket Number: (No. 11867.)
• Citation: 1 S.W.2d 464
• Parties: CITY OF FORT WORTH v. WARE.
• Court: Texas Court of Appeals

1 S.W.2d 464

CITY OF FORT WORTH v. WARE.

(No. 11867.)

Court of Civil Appeals of Texas. Fort Worth.

November 5, 1927.

Rehearing Denied December 23, 1927.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Action by Agnes Ware against the City of Fort Worth. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

R. E. Rouer, Frank G. Coates, and Robert B. Young, Jr., all of Fort Worth, for appellant.

Sol Gordon and E. B. Hendricks, both of Fort Worth, for appellee.

DUNKLIN, J.

A one-horse wagon in which Agnes Ware was riding ran off one side of a bridge which crossed a spillway running from Lake Como. The bridge is located on what is known as Park avenue, in the city of Fort Worth. The wagon fell some 20 feet to the bottom of the spillway, and as a result thereof Agnes Ware sustained injuries. She instituted this suit against the city to recover damages for those injuries, and from a judgment in her favor the city has prosecuted this appeal.

The accident occurred about 7 o'clock in the evening of October 3, 1923, while a rain was falling and it was dark. The bridge was some 20 feet wide, but it had no guard rails on the sides, and at two places near the south end of the bridge the floor boards were 18 inches shorter than the other boards adjoining, and the evidence tended to show that the wagon turned over when the wheels on one side ran into the opening caused by the short ends of some of the boards. The wagon was driven by Eugene Neely, its owner, who was on his way home. A short distance before he reached the bridge he overtook Agnes Ware and another woman, who were walking, and invited them to ride in the wagon, which invitation was accepted, and all three of the occupants fell together.

The grounds of negligence alleged in plaintiff's petition and upon which a recovery was sought were (1) a failure to maintain a light on the bridge; (2) a failure to provide guard rails along the sides of the bridge; (3) the maintenance of the bridge with some of the floor boards about 18 inches shorter than the others on its east and west sides near the south end, thus leaving open spaces at those short ends; and (4) a failure to fill in the approach to the bridge at its south end and on the west side, thus leaving an abrupt fall at the end of the bridge.

Issue No. 1, submitted by the trial court to the jury, reads as follows:

"Was the bridge at the time of the accident to plaintiff in a dangerous and unsafe condition for persons exercising ordinary care for their own safety in driving over and across the same?"

That issue was answered in the affirmative, and in answer to issues Nos. 2 and 3 the jury further found that the city was guilty of negligence in permitting the bridge to remain in an unsafe condition, and that such negligence was the proximate cause of the accident. No other issue of negligence on the part of the defendant was submitted to the jury, and the judgment rendered was based upon the findings of the jury noted above. The defendant seasonably objected to the submission of the issue of alleged negligence on its part in the form in which it was submitted; that is, in general terms, and not in the specific terms pleaded by the plaintiff, which objections were overruled. In other words, the objection made to the submission of the issue and brought forward in appropriate assignments here is that the respective issues of negligence alleged in plaintiff's petition and noted above should have been submitted separately, as required by article 2189, Rev. Statutes of 1925. The point is well taken, and the assignment is therefore sustained. The plaintiff could not recover upon any other issues of negligence than those specifically averred, and the defendant was entitled to know the particular acts or omissions upon which the judgment was based. It is impossible to...