City of Houston v. Glover, 3780

• Decision Date: 22 February 1962
• Docket Number: No. 3780,3780
• Citation: 355 S.W.2d 757
• Parties: CITY OF HOUSTON, Appellant, v. Mrs. Neva U. GLOVER, Appellee.
• Court: Texas Court of Appeals

Page 757

355 S.W.2d 757

CITY OF HOUSTON, Appellant, v. Mrs. Neva U. GLOVER, Appellee.

No. 3780.

Court of Civil Appeals of Texas, Waco.

Feb. 22, 1962.

Reformed and Affirmed March 1, 1962.

Rehearing Denied March 22, 1962.

R. H. Burks, City Atty., Edgar Pfeil, Sr., Asst. City Atty., Houston, for appellant.

Cire & Jamail, Houston, for appellee.

McDONALD, Chief Justice.

This is a damage suit by the widow of Max E. Glover, against the City of Houston, for the death of her husband, 11 days after the drove his car into a tree on an esplanade (or tree island) located in the middle of Sunset Boulevard in Houston, on 15 April 1957.

A schematic diagram of the esplanade or tree island is believed to be helpful.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Trial was to a jury which, in answer to issues submitted, found:

1) The City of Houston was engligent in failing to remove the tree prior to 15 April 1957.

2) Such negligence was a proximate cause of the collision.

3) The City of Houston failed to provide such warning devices around the trees as would have been provided by a reasonably prudent person in the exercise of ordinary care under the circumstances.

4) Such failure was a proximate cause of the collision.

5) The trees constitution a condition inherently danagerous to persons traveling Sunset Boulevard.

6) Such condition was a proximate cause of the collision.

7) Prior to this collision the City of Houston had notice of such condition.

8) The accident was not the result of an unavoidable accident.

8A) Max E. Glover was not driving his car at an excessive rate of speed.

9) Max E. Glover did not fail to maintain proper control over his car.

11) Max E. Glover did not fail to keep a proper lookout.

13) Max E. Glover was not under the influence of intoxicating beverages.

15) $50,000. will fairly compensate the plaintiff widow for her damages by rason of the death of Max E. Glover 16) $26,000. will fairly compensate the Estate of Max E. Glover for physical pain, suffering and mental anguish sustained by deceased prior to his death.

17) $4000. will fairly compensate the plaintiff for medical and funeral bills, necessarily incurred by Max E. Glover.

The Trial Court entered judgment for plaintiff on the verdict, for $80,000. Defendant City appeals on 78 points, contending:

1) The failure on the part of the City of Houston to remove the trees prior to the collision is the exercise of a governmental function, in the performance of which the City is not liable for negligence.

2) There is no evidence, or insufficient evidence, to support the jury's findings to issues 1, 2, 3, 4, 5, 6 and 7.

3) Plaintiff's husband, Max E. Glover, was guilty of contributory negligence as a matter of law.

4) Plaintiff did not comply with the City of Houston's charter in making claim for the 'pain and suffering' of Max E. Glover (Issue 16); plead same for the first time in an amended pleading filed more than 2 years after the accrual of same; and presented no evidence in support of same.

5) The Trial Court erred in admitting the testimony of Mayor Lewis Cutrer; and City Toxicologist Bob Crawford.

6) Plaintiff's counsel made improper argument to the jury.

7) The award of the jury in issues 15, 16 and 17 is not supported by the evidence; and/or is excessive.

Defendant's 1st contention is that the failure on the part of the City to remove the trees prior to the collision, is the exercise of a govermental function, in the performance of which the City is not liable for negligence. Cities in the building, maintenance and operation of streets are engated in a proprietary function and are not performing a governmental function so as to enjoy the same exemption from liability as is accorded to States and Counties in the building and maintenance of public roads. Cities are therefore liable for negligence in the maintenance of their streets, a proprietary function. Lebohm v. City of Galveston, 154 Tex. 192, 275 S.W.2d 951; City of Abilene v. Fillmon, CCA, n. r. e., 342 S.W.2d 227.

Defendant's 2nd contention is that there is no evidence, or insufficient evidence, to support the jury's answers to issues 1 through 7. Such issues found that the City was engligent in failing to remove the trees prior to the collision; negligent in failing to provide proper warning devices around the trees; that the trees constituted an inherently dangerous condition to persons travelling the street; that the City had notice of such condition; that the negligence and the dangerous condition were all proximate causes of the accident.

The record reflects that at about 8:15 P.M. on 15 April 1957, Max E. Glover struck a tree on a tree island located in the middle of Sunset Boulevard. It had been raining. Eleven days later Glover died of massive chest injuries received in the accident. The tree and the tree island are in the middle of the street and had been there for 40 years. Cars travelling west have to make a sharp turn of about 45 degrees in order to avoid hitting the tree. There were many other trees in the area; they formed a continuous row on each side of the street. The witness Maier, the City's Director of Traffic, a qualified engineer whose experience was primarily with traffic design and related to traffic safety, testified that the tree shouldn't be there; it served no purpose and does not comport with current traffic design; the tree with no lights on it would be less discernible, and as much of an obstruction as an automobile parked in the middle of the street with no lights; the tree blended in with the rest of the landscape at night; serious accidents in the past had occurred involving the trees; the only warning device was a 'Keep Right' sign very close to the tree itself and 3 reflector buttons on the tree; this had been the sole warning device for at least 10 years; the sign was knocked down frequently and he had personally reported the condition on several occasions; in 1952 he made a strong recommendation that the trees be removed; the City could not and did not have regular inspections to insure the warning signs were in proper repair; those in authority and possessed with power to remedy the situation had knowledge of the serious accidents which had occurred because of the presence of the trees. Mayor Cutrer of the City of Houston testified that he...