City of Houston v. Jean

• Decision Date: 21 November 1974
• Docket Number: No. 16386,16386
• Citation: 517 S.W.2d 596
• Parties: CITY OF HOUSTON, Appellant, v. Ada Elizabeth JEAN, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 596

517 S.W.2d 596

CITY OF HOUSTON, Appellant, v. Ada Elizabeth JEAN, Appellee.

No. 16386.

Court of Civil Appeals of Texas,

Houston (1st Dist.).

Nov. 21, 1974.

Rehearing Denied Dec. 19, 1974.

Jonathan Day, City Atty., Joseph G. Rollins, Senior Asst. City Atty., Houston, for appellant.

Moore & Laurence, Robert M. Moore, L. E. Laurence, Houston, for appellee.

EVANS, Justice.

Ada Elizabeth Jean was injured when she drove her automobile off a dead end city street into an adjacent ditch. There were no barricades, warning lights or signs indicating the end of the street or the presence of the ditch.

The jury found that the City's failure to have a barricade at the end of the street was negligence and that such failure was a proximate cause of the occurrence. It also found that the City's failure to install adequate signs along the street indicating it was not a 'through' street was negligence and that such failure was a proximate cause of the occurrence. The jury failed to find the City's failure to have warning lights near the end of the street or to install and maintain a sign that the street was a 'dead end street' was negligence.

The City in its points two through five contends that there was insufficient evidence to justify submission to the jury of the special issues concerning negligence and causation and that the jury's answers to these issues are against the overwhelming weight and preponderance of the evidence. These points of error are multifarious in that each point challenges several findings of the jury and because points three and four are phrased to present both legal and factual sufficiency questions in one point. In examining the City's argument under these points and considering the assignments in the motion for new trial to which the City makes reference, it appears the City is questioning the legal sufficiency of the evidence. Keith v. Ledbetter, 431 S.W.2d 433 (Tex.Civ.App.--Amarillo 1968, writ ref'd, n.r.e.); Calvert, 38 Tex.Law Review 361 (1960); Rule 418, Texas Rules of Civil Procedure. However, due to the nature of the evidence presented, we have considered these points as testing both the legal and factual sufficiency of the evidence. Lofland v. Jackson, 237 S.W.2d 785 (Tex.Civ.App.--Amarillo 1950, writ ref'd, n.r.e.).

The evidence shows that Miss Jean, her cousin and another girl friend had been visiting a friend at her apartment on the evening preceding the accident. About midnight Miss Jean left the friend's apartment by herself and was driving toward her home. She was taking a route home different from that taken to her friend's apartment. Miss Jean's brief description of her trip to the scene of her accident indicates that after leaving her friend's apartment she drove east on Elm Street and that her car crossed through the intersection of Elm Street with Alder Street and went into a ditch. In her testimony a blackboard was used which is not before us.

The officer who investigated the accident described Elm and Alder Streets as 'rough-type black top pavement.' He stated that Elm Street dead ends into Alder Street at a 'T' intersection and that a 6-foot deep ditch runs parallel with and about four feet distant from the east line of Alder Street. The area to the east of the ditch is an open field with weeds and he could not recall any trees or other structures out in the field or close to the intersection. The weather was clear and fairly warm. There were no signs indicating that Elm was a dead end street and the only lighting at the location was a 'small light approximately 25 to 30 feet up the roadway.' The officer testified that this light was 'one of the real old timers' that the City possibly used prior to the installing of the 'big kind that puts out a great amount of light.' The light appeared to be a 150 to 200 watt bulb that was screwed in under 'a little lamp-type thing.' The officer testified this light did not put out much light at the intersection and that it was just a street light and not a warning light. He said there were no warning devices whatsoever at the intersection. Miss Jean's car was found facing into the ditch indicating it had been proceeding in an easterly direction. The officer's testimony was also related to a blackboard drawing which is not before us.

It was stipulated that Elm and Alder Streets were within the corporate limits of the City of Houston and that at the time of the accident there were no signs indicating that Elm was a dead end street or that it was not a through street; nor were there any barricades or warning lights at that location.

There was no direct testimony of any eyewitness to the accident other than that of Miss Jean. The record indicates that the issue of contributory negligence was not raised by the pleading and the trial court's order granting Miss Jean's motion in limine expressly precluded the introduction of any testimony by Miss Jean or other witness 'concerning the actions or conduct of the plaintiff in driving her vehicle either prior to or during the time that she ran off the embankment.'

We are of the opinion that the evidence is sufficient to support the jury's findings of negligence and proximate cause. The City was under a duty to warn or protect against any special defect such as an excavation or obstruction in the street or in such proximity to the street as to render travel unsafe. Gabert v. City of Brownwood, 176 S.W.2d 344 (Tex.Civ.App.--Eastland 1943, writ ref.). See also Texas Tort Claims Act, Article 6252--19, § 14(12), Vernon's Tex.Rev.Civ.Stat.Ann.

The testimony showed that the accident occurred at nighttime at the end of black top pavement and that there were no trees, structures or barricades at the end of Elm Street indicating its termination. The jury could reasonably have inferred, under such circumstances, that a street which suddenly stopped only four feet from a 6-foot ditch and with only a 150 to 250 watt bulb lighting the area constituted a dangerous condition and that the City was negligent in its failure to warn or protect travelers against such danger. City of Austin v. Schmedes, 154 Tex. 416, 279 S.W.2d 326 (1955); City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753 (1960); City of Waco v. Darnell, 35 S.W.2d 134 (Tex.Com.App.1931).

We believe the issue of proximate cause, which included the element of foreseeability, was one of fact for the jury. City of Fort Worth v. Lee, 143 Tex. 551, 186 S.W.2d 954 (1945). It is not suggested that the accident occurred as the result of Miss Jean's own negligence and in the absence of evidence of contributory negligence, the jury could assume that she drove with due care for her own safety. City of Houston v. Henderson, 506 S.W.2d 731 (Tex.Civ.App.--Houston (14th) 1974, no writ). Since the evidence tended to show that the accident could reasonably have been caused by the City's failure to have barriers, or warning signs at the location, the jury was at liberty to infer from circumstances of the accident that 'the known possibility produced the result.' Collier v. Hill & Hill Exterminators, 322 S.W.2d 329, 337 (Tex.Civ.App.--Houston (1st) 1959, no writ). The issue of proximate cause may be established by circumstantial evidence. Bock v. Fellman Dry Goods Co., 212 S.W. 635 (Tex.Com.App.1919). The City's points two through five are overruled.

The City's sixth and seventh points of error complain that Miss Jean's counsel committed reversible error in his final argument to the jury. The argument complained of is as follows:

'Do you think any person would, regardless of how badly they think money is important in their life. Do you think anyone would in advance say yeah, I'll do that for $80,000.00. I don't think any of you would. I know she wouldn't and I know I wouldn't.

'O.K. Now let's try and approach it from the other way. Counsel was talking about the fact he has a girl of this age and he can identify with her. I wonder if counsel would take $80,000.00 if his girl--'

The City objected to this argument on the ground that Miss Jean's counsel was 'getting into personalities.' The trial court sustained the objection and Miss Jean's counsel apologized for making the statement. A review of previous argument reflects that counsel for Miss Jean was arguing the point that a person would not willingly undergo injury of this nature for the sum of $80,000.00. No objection was made to that line of argument and it was not until counsel made the quoted statement that objection was asserted.

Subsequently Miss Jean's counsel made the following argument:

'But the thing I wish you would consider is that the law allows this young lady some compensation. I am not saying treat her like a princess, don't give her any special treatment. We are not asking for that. The most we could ask for and the proper thing we could ask for is no more than you yourself could ask for under the Golden Rule and that is do unto others as you...