City of Galveston v. Posnainsky

Decision Date27 June 1884
Docket NumberCase No. 5445.
Citation62 Tex. 118
CourtTexas Supreme Court

APPEAL from Galveston. Tried below before the Hon. A. P. McCormick.

Suit brought November term, 1873, of the district court of Galveston county, by Nannie Posnainsky, a minor, who sued by her father and next friend, G. Posnainsky, against the city of Galveston for damages caused by her falling into a neglected drain, bordering one of the sidewalks of the city, originally constructed by the city, but out of repair, uncovered and unguarded, by which she was rendered a cripple for life. Charged that the accident occurred through the negligence of the city.

The defendant, besides the general denial, answered specially that the injury, if any, was sustained and occasioned by the “carelessness, want of attention and reckless disregard of all prudence” on the part of the plaintiff. That the sidewalk was sixteen feet wide, entirely unincumbered and free, open and smooth throughout its entire width and length; that the street in front and adjoining the sidewalk, was also unincumbered, open and smooth for its entire length, for all travelers and passers; that between the sidewalk and street is a gutter or drain which the defendant, in discharging the duties imposed on her by the charter of the city, constructed and maintained for the purpose of draining the location. “That the said gutter was left open and uncovered by the authority of the city, intentionally and designedly,” so as better to preserve the health of the city. That the gutter was of such size and width as to be easily seen by all passers, and was seen and known to exist by plaintiff; that it was near the house of plaintiff; that at the time of the accident it was broad daylight; that the injury was not caused by the fall, but by a cut from a glass bottle; that the crippled condition was caused by the want of proper surgical aid; and upon these issues the parties went to trial, and a verdict and judgment rendered against the defendant for $10,000.

A brief filed by Hon. A. H. Willie in 1876, and before his election to the position of chief justice, cited for appellant the following cases to show that in New England states neither towns nor cities are under implied liability for injuries resulting from defective sidewalks or streets: Oliver v. Worcester, 102 Mass., 488, 489; Chidsey v. Canton, 17 Conn., 478; Reed v. Belfast, 20 Maine, 245, 248; Baxter v. Turnpike Co., 22 Vt., 114;Providence v. Clapp, 17 How., 167;Mower v. Leicester, 9 Mass., 247.

He cited, also: Russell v. Men of Devon, 2 Term R., 667; Mayor of Lynn v. Turner, Cowp., 86; Henley v. Mayor of Lyme, 5 Bing., 91; Gibson v. Mayor of Preston, 5 Q. B., L. R., 218, 222; Lane v. Colton, 1 Ld. Raym., 646; Whitfield v. La Despencer, 2 Cowp., 754; Freeholders v. Strader, 3 Harr. (N. J. L.), 108; Cooley v. Freeholders of Essex, 3 Dutch., 415;Livermore v. Board of Freeholders, 29 N. J., 245;Pray v. Mayor, 32 Id., 394;Brinkmeyer v. Evansville, 29 Ind., 187;Duke v. Mayor, 20 Ga., 635;Richmond v. Long, 17 Gratt., 375;Prather v. Lexington, 13 B. Mon., 559;Western College v. Cleveland, 12 Ohio St., 375;12 La. Ann., 481; Daagan v. Mayor of Mobile, 31 Ala., 469;Detroit v. Blackeby, 21 Mich., 84.

Jas. B. Stubbs, also for the appellant, filed an able argument for a rehearing.

Waul & Walker, with Kilpatrick, for appellee, cited, on the right to sue the city for the injury: Weightman v. Washington, 1 Black, 39;Nebraska City v. Campbell, 2 Id., 590;Chicago City v. Robbins, 2 Id., 418; Mayor v. Sheffield, 4 Wall., 184, 194; Barnes v. District of Columbia, 1 Otto, 541, 551; Evanston v. Gunn, 9 Id., 600; 14 Gray, 541;Meares v. Commissioners of Wilmington, 9 Ired., 80;Albrittin v. Mayor of Huntsville, 60 Ala., 486; S. C., 31 Am. R., 46; O'Neil v. City of New Orleans, 30 La., 220; S. C., 31 Am. R., 221; Dewey v. Detroit, 15 Mich., 309;Smoot v. Mayor, 33 Ala., 69;Dayton v. Pease, 4 Ohio St., 80; Erie v. Schwingle, 22 Pa. St., 384; Sterling v. Thomas, 60 Ill., 264;Blake v. St. Louis, 40 Mo., 569;Rowe v. Portsmouth, 56 N. H., 291; Eastman v. Meredith, 36 N. H., 280; Parker v. Lowell, 11 Gray, 353;Vason v. Augusta, 38 Ga., 542; State v. Newark, 4 Dutch. (28 N. J. L.), 491;Memphis v. Lasser, 9 Humph., 757;Rochester W. L. Co. v. Rochester, 3 N. Y., 463;Weet v. Brockport, 16 N. Y., 161, n; Mayor v. Furze, 3 Hill, 312; and other authorities cited in the opinion.


It is urged that the court erred in giving the first and fourth instructions. These instructions were as follows:

1. “The defendant has entire control of streets within the corporate limits, and has power to provide for and enforce the manner in which said streets are to be kept, and is liable to travelers on said streets for any damage received, without the fault of the one injured, from the placing in the street such obstructions as render the travel upon said street hazardous to the persons or the property being conveyed, or passing said streets.”

4. “If the drain was a reasonably proper one in its manner of construction, and the leaving it uncovered and unfenced between the crossings of the streets and alleys was not reasonably liable to result in injury to persons passing and using ordinary care, to be expected from those who usually travel streets in the city, the defendant would not be liable, and you should return your verdict for the defendant.”

It is also urged that the court erred in the charge generally; and so much of the charge as bears on the question raised by the instructions above set out is as follows:

2. “The opening and repairing of streets is a matter of discretion in the city government; but when she undertakes to open or construct streets and travel ways, she must so construct them as to render their use reasonably safe to such persons as are naturally expected to use said ways, using such care as such persons ordinarily exercise.”

3. “It is the duty of the defendant to provide for the health of the inhabitants of the city by the construction of all necessary and proper drains.

It is a question for the jury to determine from the proof whether the drain on Seventeenth street, covered at the crossings of the streets and alleys, but left uncovered in the intervening spaces and without any barrier to prevent travelers falling in the same, was such a construction as that the persons using said street could with ordinary care avoid receiving injury therefrom.”

7. “If you find the drain was a dangerous obstruction in the street, and was not properly guarded, and that the plaintiff, using due and ordinary care in passing, slipped and fell into said drain, and that the injury she received resulted solely from said fall, and not in part from the presence of some accidental cause unknown to the defendant, you will find for the plaintiff, and assess the damage at such sum as in your judgment of the proof will compensate her for the pecuniary loss the plaintiff has sustained in the damage done to her person by said fall and injury.”

The second instruction asked by the defendant and refused by the court, in effect declared that the performance of certain acts by the city would be the exercise of due care. This charge was subject to objection on this account, and the question of due care on the part of the defendant was fairly presented to the jury, by the charges before referred to, in connection with the following charge which was given by the court:

5. “If the proof should satisfy you that the drain was one dangerous to persons passing and using ordinary care, but should satisfy you also that the injury in question resulted from the want of ordinary care on behalf of the plaintiff, the plaintiff cannot recover for the injury thus received through the plaintiff's want of ordinary care. In considering the question, the use of care on the part of the plaintiff, you will have regard to the age of the plaintiff, and not exact the same degree of care on the part of a child of nine or ten years as would be exacted of and exercised by a person of mature years and discretion.”

The second instruction asked by the defendant, as well as the third, which was also refused, assumed that the city was liable if the injury resulted from the want of due care by it, without negligence on the part of the injured person.

As well stated by counsel for the appellant, “the gist of the action is the negligence of a municipal corporation in failing to keep its streets in repair, whereby damage resulted to a private person. And right at the threshold we are confronted with the important question: Is a municipal corporation liable, civilly, for such negligence?” This question is fairly raised by the assignments of error, based on the charges given; it may, however, be doubted, looking to the charges asked by the defendant and refused, whether this question was directly raised in the court below during the trial.

The city of Galveston is a municipal corporation, incorporated by an act of the legislature of this state; and in addition to the powers of taxation, and other like powers usually conferred on such corporations, its charter provides that it shall have powers thus stated in its charter:

TITLE 12--ART. 4.

Section 7. To have the exclusive control and power over the streets, alleys and public grounds and highways of the city, and to abate and remove encroachments or obstructions thereon, to open, alter, widen, extend, establish, regulate, grade, clean, or otherwise improve the same; to put drains and sewers therein, and to prevent the incumbering thereof in any manner, and to protect the same from any encroachment or injury, and to regulate and alter the grade of premises, and to require the filling up and raising of the same.

Section 8. To establish, erect, construct, regulate and keep in repair bridges, culverts and sewers, sidewalks and crossings, and to regulate the construction and use of the same, and to abate and punish any...

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