City of Ft. Worth v. Shero

• Decision Date: 03 July 1897
• Parties: CITY OF FT. WORTH v. SHERO.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

41 S.W. 704

CITY OF FT. WORTH v. SHERO.¹

Court of Civil Appeals of Texas.

July 3, 1897.

Appeal from district court, Tarrant county; Irby Dunklin, Judge.

Action by Isaac Shero against the city of Ft. Worth. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

W. D. Williams and Theodore Mack, for appellant. Pruitt & Smith, for appellee.

HUNTER, J.

On the 11th day of May, 1895, about 9 o'clock at night, appellee, in company with a friend, was walking south on the east sidewalk of Jennings avenue, opposite and in front of the United States post-office building, said avenue and sidewalk being one of the public streets and sidewalks of appellant city, when he stumbled and fell over an iron stake and guy rope fastened thereto, which stake had been driven into the sidewalk about 2½ feet from the curbstone, the sidewalk being 10 feet wide. It was a dark night, and no light or danger signal was placed at or near the obstruction. There was a city electric light on the north and one on the south, but they were about 200 feet from the obstruction, and did not sufficiently light the sidewalk at this point to disclose the obstruction. The iron stake had been driven in the sidewalk, and the rope—a large, two-inch cable—affixed thereto by the contractors then erecting the federal building, to support a derrick used by the said contractors in raising stone and other material used in the construction of said building, and the evidence is conflicting as to the length of time the stake and rope had been there, some of appellee's witnesses fixing it at two months, and some of appellant's witnesses fixing it at only a few days. It is not shown that the city, through any of its officers, had actual notice of the existence of the obstruction. By this fall the evidence tends to show appellee was seriously injured, for which injuries he recovered $5,000 damages. A few days after he was injured, getting no better, the appellee sent for Mr. Smith, an attorney at law, of the firm of Pruitt & Smith, and engaged the firm through him to take charge of his case against the city. These attorneys consulted with the attending physician immediately and frequently, who was for several weeks unable to say what the extent of his injuries was, or that they would be permanent, until about the 7th of June, when the physician informed said attorneys of the extent and character of the injuries, and that they would probably be permanent and serious in their character. Thereupon, on the 8th day of June, 1895, the said attorneys prepared the following: "Fort Worth, Texas, June 8th, 1895. To the Honorable City Council of Fort Worth: Your petitioner, Isaac Shero, would show and represent unto your honorable body that on the night of the 11th day of May, 1895, at about 9 o'clock p. m., while he was walking on the east sidewalk on Jennings avenue, directly east of and opposite to the federal building, he stumbled over a stake one foot in height, driven in the earth about the center of the sidewalk, and also over a rope attached to said stake and drawn across said sidewalk and attached to the top of said building; that after he stumbled at said time and place he fell to the ground; that his feet struck said obstructions, and while he was in the act of falling as aforesaid, and in said fall, and while he was making an effort to keep from falling at said time and place, his back and vertebral column were sprained, wrenched, bruised, and injured, and other parts of his body, both internal and external, were bruised and injured; and that your petitioner, by reason thereof, is permanently injured, and has suffered much physical and mental pain, and has been prevented and hindered from working, laboring, and earning a livelihood, and has spent large sums of money in and about the getting cured of his said injuries; all to his damage in the sum of $15,000. Petitioner says that said injuries and damages were caused by no negligence of his, but were caused by the negligence of the city of Fort Worth and its agents in willfully and negligently allowing and permitting said obstruction on said sidewalk for more than four months prior to said injury, and in negligently failing to have said place of obstruction lighted so as to avert said injury. Whereby he says said city became liable to him for said damages, and he hereby notifies said city of said injuries, and asks damages in said sum. Pruitt & Smith, Attorneys for Isaac Shero." During all this...