City of Houston v. Isaacs

• Decision Date: 04 March 1887
• Citation: 3 S.W. 693
• Parties: MAYOR, ETC., OF THE CITY OF HOUSTON <I>v.</I> ISAACS.
• Court: Texas Supreme Court

3 S.W. 693

MAYOR, ETC., OF THE CITY OF HOUSTON

v. ISAACS.

Supreme Court of Texas.

March 4, 1887.

Appeal from district court, Harris county.

C. Anson Jones, for appellant. E. P. Hamblen, for appellee.

GAINES, J.

This is a suit against appellants by appellee to recover damages for a personal injury received by the wife of the latter. Appellee, who had his wife with him, was driving his wagon along one of the streets of the city of Houston, and ran into a hole. By a jolt caused by the depression, the wife was thrown from the vehicle, and thereby injured. One Hatter had entered into a contract with the city to gravel the street, and, in pursuance of his agreement, had made an excavation about eight inches deep at the place where the accident occurred. The authorities of the city, becoming dissatisfied with the manner in which he was performing the contract, had stopped the work, and the excavation was left as he had made it.

The cause was submitted to a jury, and it is assigned that the court erred in failing to charge that plaintiff could not recover unless written notice had been given to the mayor or street commissioner of the city of the defect in the street before the time of the alleged injury, and in refusing to give special instructions to that effect asked by defendants. It is admitted that no such notice was given. In support of the assignment, we are referred to section 24 of the amended charter of the city, which reads as follows: "That said corporation shall not be liable to any person for damages for injuries caused from streets, ways, crossings, bridges, or sidewalks being out of repair from gross negligence of said corporation, unless the same shall have remained so for ten days after special notice in writing given to the mayor or street commissioner." Sp. Laws 1879, p. 22. The provision is a most stringent one, and its practical effect would seem to be to exempt the city from all liability for such defects as ordinarily accrue. But we cannot say that it should not be enforced in a case in which it is applicable. We are of opinion, however, that it does not apply to the case before us. There may be some reason in requiring notice to the city authorities of a defect accruing from ordinary causes; such as the action of floods, the use of the street by the public, or it may be said from any cause except by the action of the city itself. But in the present case the city put a contractor to work upon the street, stipulating to have an excavation made which was to be filled with gravel, and after the work had begun, and the street rendered unsafe for travel,...