City of Fort Worth v. Morrow

• Decision Date: 03 April 1926
• Docket Number: (No. 11541.)
• Citation: 284 S.W. 275
• Parties: CITY OF FORT WORTH v. MORROW et ux.
• Court: Texas Court of Appeals

Page 275

284 S.W. 275

CITY OF FORT WORTH v. MORROW et ux.

(No. 11541.)

Court of Civil Appeals of Texas. Fort Worth.

April 3, 1926.

Rehearing Denied May 8, 1926.

Appeal from District Court, Tarrant County; H. S. Lattimore, Judge.

Action by W. D. Morrow and wife against the City of Fort Worth. Judgment for defendant. From order granting a new trial, defendant appeals. Appeal dismissed.

R. E. Rouer and Gillis A. Johnson, both of Fort Worth, for appellant.

Phillips, Brown & Morris, of Fort Worth, for appellees.

BUCK, J.

Plaintiffs below, W. D. Morrow and wife, sued the city of Fort Worth in the Ninety-Sixth district court of Tarrant county for damages for alleged injuries suffered by the wife while using a slide or chute at the Forest park bathing pool on August 16, 1924. It was alleged that Mrs. Morrow and some friends went out to the pool early in the morning to swim, and that she climbed up on top of the chute or slide and attempted to slide down; that by reason of some obstruction on the metal railing at the side of the chute, she hurt the little finger of her right hand, and such injury caused her to relinquish her hold on the railing with the right hand and turn over on her stomach, and that as she was rapidly and forcibly thrust downward and backward her left arm was caught in the narrow opening of the frame work under the slide and severely injured. They alleged negligence on the part of the defendant city in that it failed to keep said slide in a reasonably safe condition for the use of persons permitted to use the same, and that it permitted a V shape exposure formed by the inclined bar or plate at the edge of the slide and the horizontal bar or plate supporting it. They alleged that a metal plate with a rolled edge usually fitted into this acute angle, and that by reason of the rolled edge her hand would not have been caught in the angle or V if the plate had been attached, but that the plate had been allowed to become detached and remain off, and that thereby Mrs. Morrow's hand was caught in the acute angle and held for a long time before the employees of the city at the park could extricate it; that her wrist and the tendons and ligaments thereof were cut and bruised; and that her injury was permanent.

The defendant demurred generally and specially and pleaded general and special denials, and specially pleaded that Mrs. Morrow was guilty of contributory negligence.

Upon a trial before a jury the defendant asked for a peremptory instruction in its favor, which was overruled. The cause was submitted to the jury on special issues, and the jury found: (1) That the city was guilty of negligence in maintaining the bathing chute on which the plaintiff was injured in the way it did maintain it; (2) that such negligence was the proximate cause of the in jury to the plaintiff; (3) that the plaintiff was guilty of contributory negligence in her conduct in connection with said chute on the occasion of her injury; (4) that $2,166.67 would fairly and reasonably compensate the plaintiff for the injuries sustained by her on the chute.

Upon this verdict the court entered judgment for defendant. Plaintiff filed a motion for a new trial, and in their amended motion they urged that the answer of the jury in response to the issues of contributory negligence was not supported by the testimony; that some of the jurors did not fully understand the court's charge and the definition of contributory negligence and proximate cause, and did not believe at the time special issue No. 3 was answered in the affirmative that the plaintiff, Mrs. Morrow, was guilty of such negligence as contributed to or was the proximate cause of her injury, and that such jurors only believed that, while the plaintiff might have been guilty of some negligence or carelessness or indifference, that such negligence, carelessness, or indifference did not contribute to the injury, and neither was it the proximate cause of the injury. It was further alleged that the jury was guilty of misconduct in that it discussed what would be the effect of their finding on special issue No. 3, and some of the jurors contended that to find plaintiff guilty of contributory negligence would not preclude her from a recovery, and that on account of such misconduct on the part of such jurors some of them were induced to agree to the affirmative answer to said special issue No. 3, and they would not have done so if they had not believed that an affirmative answer would not preclude a recovery. Other grounds were urged in support of the motion for new trial, but if it becomes necessary in the further discussion of this opinion, we will mention such grounds. On June 6, 1925, the court granted the motion for new trial, and defendant excepted and gave notice of appeal to this court.

In 1925 the Thirty-Ninth Legislature (Acts 1925, c. 18), amended article 2078, Rev. Civ. St. 1911, article 2249 in the 1925 codification, so as to allow an appeal from an order of any district or county court in civil cases granting motions for new trials, the amended law reading as follows:

"Article 2078 of the Revised Civil Statutes of 1911 is hereby amended so as hereafter to read as follows:

"An appeal may be taken to the Court of Civil Appeals from every final judgment of the district court in civil cases, and from every final judgment in the county court in civil cases of which the county court has original jurisdiction, and from every final judgment of the county court in civil cases in which the court has appellate jurisdiction, where the judgment or amount in controversy exceeds one hundred dollars exclusive of interest and costs, and provided further that an appeal may be taken to the Court of Civil Appeals from every order of any district or county court in civil cases granting motions for new trials in any of the above mentioned cases and such appeal shall be taken within the same time and in the same manner as if the judgment was final."

The act has an emergency clause, but no record vote in the House is given, and the bill passed the Senate by 17 yeas and 9 nays. Therefore the act became effective 90 days after the adjournment of the Legislature, which was on March 19th. Therefore the law became effective on July 17, 1925, or eleven days after the motion for new trial was granted in the instant case, and after appellant's appeal was perfected. The appellant being a municipality, it did not have to give an appeal bond; therefore the appeal was perfected by the giving of the notice of appeal. Article 2085, Rev. Civ. Stats., and article 2254, 1925 codification. The Ninety-Sixth district court's April term began on the first Monday in April, and the July term began on July 4th — therefore the motion for new trial was granted at the same term in which the judgment was rendered.

There are two main questions involved:

(1) Did appellant have the right to appeal from an order granting a new trial eleven days before the law authorizing an appeal from an order granting a new trial became effective?

(2) If it did have the authority to appeal, did the trial court err, as a matter of law, in granting the motion for new trial?

The Constitution of Texas prohibits ...