City of Houston v. Riggins

• Court: Texas Civil Court of Appeals
• Writing for the Court: McKAY
• Citation: City of Houston v. Riggins, 568 S.W.2d 188 (Tex. Ct. App. 1978)
• Decision Date: 15 June 1978
• Docket Number: No. 1138,1138
• Parties: CITY OF HOUSTON, Appellant, v. Chauncey RIGGINS, Appellee.

Page 188

568 S.W.2d 188

CITY OF HOUSTON, Appellant, v. Chauncey RIGGINS, Appellee.

No. 1138.

Court of Civil Appeals of Texas, Tyler.

June 15, 1978.

Roy F. Martin, III, Asst. City Atty., Houston, for appellant.

Rod V. Steinburg, Michael Y. Saunders, Helm, Pletcher, Hogan & Burrow, Ray Putney, Houston, for appellee.

McKAY, Justice.

Appellee Chauncey Riggins brought suit against the City of Houston (City) for damages for personal injuries received when the boat in which appellee was riding went over the spillway at the dam on Lake Houston. Trial was before a jury, and the trial court, based upon the verdict, rendered judgment for appellee for $36,850.00 plus stipulated medical expenses of $1,956.00, the total judgment being for $38,806.00. The City brings this appeal on several points.

The pleadings of appellee allege that the City was negligent (1) in failing to provide a barricade or sufficient warning signs or lights or other instruments around the dam to warn of dangerous conditions created by the high level of water in the lake, and (2) in failing to warn persons in boats which the City could reasonably foresee would be transversing the property of the dangerous conditions. The City answered by general denial, and further alleged that any injuries to appellee were caused by his own acts of negligence, each of which was a proximate cause of the accident and any injuries. It was further alleged by the City that conditions on Lake Houston were open and obvious, that appellee had actual and full knowledge of the dangers of boating on said lake, or that he was charged by law with such knowledge, and that the City owed appellee no further duty to warn of danger, and consequently breached no legal duty to appellee, and that appellee voluntarily exposed himself to such danger and voluntarily assumed all the risks. Alternatively, the City plead unavoidable accident.

The City alleged by trial amendment that appellee failed to comply with its charter notice provisions, but the trial court denied the City's motion for leave to file.

The City's points one and two complain that the trial court erred in admitting testimony relating to other dams because such evidence was irrelevant and shifted the burden of proof. Appellee's witness Keithley was permitted to testify over City's objection about markings or buoys or other warning devices at spillways on other lakes at other times. The City objected that the markings or construction or the existence or anything about any of the other spillways or other lakes was irrelevant to the conditions which existed on April 25, 1973, at Lake Houston. The trial court overruled the City's objections. Thereafter appellee introduced testimony from other witnesses to the same effect as that of Keithley, without objection by the City; and City cross-examined all of these witnesses about conditions at other lakes. If the trial court erred in admitting Keithley's testimony, City's objection to it was waived for failure to object to similar evidence later introduced by appellee. An objection to evidence is waived by permitting other witnesses to testify without objection to the evidence complained of. San Antonio & A. P. Ry. Co. v. Lester, 84 S.W. 401 (Tex.Civ.App.1904, rev'd on other grounds, 99 Tex. 214, 89 S.W. 752); Howell v. Bowden, 368 S.W.2d 842 (Tex.Civ.App.-Dallas 1963, writ ref'd n. r. e.); 23 Tex.Jur.2d, Evidence, sec. 208, p. 320. Points one and two are overruled.

By points three and four, City maintains the trial court erred in rendering judgment for appellee because there was no evidence, or insufficient evidence, to support the jury's answer to special issue one. We overrule these points.

Special issue one inquired: "Do you find from a preponderance of the evidence that there was any negligence on the part of the City of Houston on the occasion in question which was a proximate cause of the occurrence in question?" The jury answered: "We do."

The witness William Keithley called by appellee, testified that in 1963 there was a "restricted area" sign near the spillway on Lake Houston, but no signs reading "danger." He said he found the buoys gone, expanses where there were no buoys or rope "nothing to indicate that there was any reason to not go down there," and that that condition existed through 1973. He further testified that when the buoys were there, they were small (approximately five to six inches around and approximately two feet tall), and approximately 100 yards apart, and that there was a small rope between the buoys "but it wouldn't really prevent you from going through there"; that sometimes the rope would be above the water and at other times it would be on or under water; and that as you go toward the area of the spillway, before you get to it, you see the sky and the trees, there being nothing on top of the spillway.

Appellee's witness Curtis Blackmon, Jr., testified the boat in which appellee and others were riding when it went over the spillway was owned by him, and that he took delivery of it the day before the accident; that he did not know Lake Houston had a spillway. He said there were eight people in the boat five men and three women in a 173/4 foot boat; that his stepbrother, John Mendenhall, was operating the boat when the accident occurred; that they were heading for some trees to find a better fishing place and it was a complete surprise when they went over the spillway; that he did not see anything that caught his attention to indicate that there was a spillway in that area. He further testified he was not looking for any buoys or markers and did not see any; and that he had had "a couple of beers," and Chauncey had "one or two cans."

Sean Michael McGown, called by appellee, testified he was in the boat at the time of the accident, and when the boat approached the spillway, he saw "water running up the trees, tall pine trees," and he had no idea there was a spillway there and saw no indication the boat was about to enter a dangerous area. He further said he saw nothing to indicate there was a spillway and saw no signs or writing or ropes or buoys visible to him, and the boat was moving approximately 20 miles per hour when it went over the spillway.

The witness John Mendenhall testified that he had no idea there was a spillway on Lake Houston; that he was operating the boat at the time it went over the spillway; that as the boat approached the spillway all he could see was water and trees; and that he did not see any warning signs or markers about a danger area.

Appellee's witness Lloyd Koenig, a commercial photographer, testified that when he was at the spillway on Lake Houston on October 21, 1976, there were markers and buoys approximately 300 yards from the spillway, and that buoys were roughly 100 yards apart in that area; that when you look in the direction of the spillway you see the spillway and the tree line appears to be the shore tree line, but such tree line is on the other side of the spillway, and that you have a false indication that it is water all the way to land, and that situation continues after you are inside the buoys; that the buoys were small and you had to get very close to them to see the writing on them that indicated there was a spillway and dam area; that if you were actually looking for buoys in the area and observing very closely there was a possibility of seeing those that are there; that he did not "see any sign out there that said 'spillway' or 'danger of spillway' "; and that you could not tell that there was a spillway there as you approached in the boat as there was nothing on top of it to indicate its location.

The witness Bill G. Healer, manager of water production and distribution for the City of Houston, testified as a witness for the City. His testimony was that the spillway elevation was 44.50 feet above sea level and the length of the spillway was 3160 feet and the dam was approximately 20 feet higher than the spillway. He further said the buoys were placed in the spillway area in 1969 and remained there until the time of the accident involved here, and that such buoys were Coast Guard approved commercial buoys approximately 12 to 14 inches around at the top and tapered from the bottom approximately 18 inches in diameter at bottom; that on April 25, 1973, there was approximately six inches of water flowing over the spillway and there 15 or 16 buoys which were placed approximately one-quarter mile from the spillway, and there were six telephone poles in the area with signs on them 18 inches long with four-inch lettering; that occasionally a buoy would become lost, but not often because they were anchored with a concrete anchor and a galvanized chain and were 300 to 400 feet apart; that the buoys protruded from the water approximately 40 inches and had four-inch lettering on them; that when the water is going over the spillway the spillway itself cannot be seen; and that he believed barricades on the spillway would be extremely hazardous because pressure of high water and debris would wash it away or alter it and damage the spillway.

The parties here are not in complete accord as to whether appellee was an invitee or a licensee at the time of the accident. If the owner or occupant of premises invites the public to come upon his premises he owes such persons the duty to have such premises in a reasonably safe condition and to give warning of concealed or latent perils so that invitee would not be injured. Texas-Louisiana Power Co. v. Webster, 127 Tex. 126, 91 S.W.2d 302, 306 (1936); Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073, 1074 (1941). If the injured person was a licensee the duty owed him by the owner or occupier of the premises was not to injure him by willful, wanton or gross negligence; but if the licensor knows of a dangerous condition, and licensee does not, a duty is owed to either warn the licensee or to make the condition safe. State v. Tennison, 509 S.W.2d 560...