City of Houston v. Matthews

• Decision Date: 19 June 1980
• Docket Number: No. 17653,17653
• Citation: 605 S.W.2d 628
• Parties: The CITY OF HOUSTON, Appellant, v. Pauline MATTHEWS et vir, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 628

605 S.W.2d 628

The CITY OF HOUSTON, Appellant, v. Pauline MATTHEWS et vir, Appellees.

No. 17653.

Court of Civil Appeals of Texas, Houston (1st Dist.).

June 19, 1980.

Rehearing Denied Aug. 7, 1980.

Robert M. Collie, Jr., City Atty., City of Houston, R. Burton Ballanfant, Senior Asst. City Atty., Houston, for appellant.

Aldrich & Buttrill, Gerald H. Buttrill, Houston, for appellees.

Before COLEMAN, C. J., and DOYLE and WALLACE, JJ.

DOYLE, Justice.

This is an appeal from a judgment awarding damages to Pauline Matthews for serious personal injuries she sustained when she fell on a sidewalk located in the City of Houston adjacent to a bus stop she planned to use for boarding a bus. The City argues that under the trial court's instruction it was required to exercise a high degree of care in maintaining the bus stop, where the law only required the use of ordinary care.

We reverse and remand.

Testimony showed that the sidewalk was in disrepair at the time of the accident. Further testimony showed that the area containing the sidewalk was a city bus stop, and had been so designated and used since 1957. Mrs. Matthews testified she and her mother were walking on the sidewalk for the purpose of catching a bus to downtown Houston when the accident occurred.

Trial was to a jury who answered seven special issues finding: that at the time and place of the occurrence in question the City of Houston had failed to maintain the bus stop in question in such reasonably safe condition as a city exercising a high degree of care would have done; that such failure was a proximate cause of the occurrence in question; that on the occasion in question Mrs. Matthews did not fail to keep such a lookout as a person using ordinary care would have kept; that such failure was not a proximate cause of the occurrence in question; and that Mrs. Matthews should be awarded damages in the amount of $112,000. The court entered judgment on the verdict and the City filed a motion for new trial or, alternatively, for remittitur. The City assigns five points of error.

By the first point of error, the City asserts the trial court, over its objection, erred in instructing the jury that the City of Houston had the duty to exercise a high degree of care to maintain the bus stop in question in a reasonably safe condition for the use of pedestrians using such bus stop. We sustain this point of error.

At the outset we deem it necessary to point out that before any duty arose on the part of the City to Mrs. Matthews in reference to her use of the bus stop, it was incumbent upon Mrs. Matthews to show the establishment of a passenger-carrier relationship between her and the City. The evidence shows that no such relationship ever came into existence. It is undisputed that the accident occurred on a public sidewalk as Mrs. Matthews approached the bus stop, with no bus approaching or waiting at the location in question. The relationship of passenger and carrier can exist only if there is a contract, expressed or implied, between the carrier (City) and the person transported (Mrs. Matthews). 10 Tex.Jur.2d, Carriers § 20.

In every case cited by Mrs. Matthews as authority for holding a common carrier to a high degree of care, the relationship of passenger-carrier had been established or was continuing at the time of the accident. In Ft. Worth & D.C. Ry. Co. v. Brown, 205 S.W. 378 (Tex.Civ.App.-Amarillo 1918, no writ), the plaintiff was a passenger waiting to change trains in the railroad's depot when he suffered an injury from sitting in a defective chair. In Ft. Worth & D.C. Ry. Co. v. Kidwell, 112 Tex. 89, 245 S.W. 667 (1922), the plaintiff had purchased a ticket, left the station to attend to personal business and upon returning to the train, stepped into a depression on the railroad platform resulting in serious injuries. The passengers in Texas New Mexico & Oklahoma Coaches, Inc. v. Williams, 191 S.W.2d 66 (Tex.Civ.App.-El Paso 1945, ref'd w. o. m.), and Houston Transit Co. v. Zimmerman, 200 S.W.2d 848 (Tex.Civ.App.-Galveston, 1947, writ ref'd n. r. e.) were injured and killed, respectively,...