City of Palestine v. Addington
| Decision Date | 10 June 1903 |
| Citation | 75 S.W. 322 |
| Parties | CITY OF PALESTINE v. ADDINGTON. |
| Court | Texas Court of Appeals |
Appeal from Anderson County Court; G. W. Hudson, Judge.
Action by W. M. Addington against the city of Palestine. From a judgment for plaintiff, defendant appeals. Affirmed.
P. W. Brown and R. G. Brashears, for appellant. Gregg & Brooks, for appellee.
The appellee sued appellant to recover damages for personal injuries sustained by reason of the latter's negligently maintaining a defective sidewalk. The defense plead was contributory negligence caused by appellee's intoxication at the time of his injury. The case was tried before a jury, and the trial resulted in a judgment in favor of appellee for $300.
The evidence is sufficient to show that the appellee, while in the exercise of ordinary care, and not intoxicated, in walking along a sidewalk of one of the streets of the city of Palestine, stepped into a hole which the city had negligently allowed to be and remain in the sidewalk, fell, broke his arm, and sustained other personal injuries, to his damage in the sum found by the jury.
There was no error in the court's sustaining appellee's third exception to appellant's answer, because appellee never pleaded the loss of position, or his inability to get work, as an element of damage; and the part of the answer to which the exception was sustained constituted no defense to the action, nor any ground for mitigation of the damages alleged.
If special charge No. 2 requested by appellant had been given, the jury would have been required to find against the appellee, if they believed his failure to look in the direction that he was going contributed to his fall and injury, regardless of the question as to whether such failure on his part constituted negligence. It would have been tantamount to saying that the failure of one, while walking along a sidewalk, to look in the direction he was going, constitutes negligence, as a matter of law. It was for the jury to say, and not the court, whether such fact constituted negligence on the part of the appellee.
Appellant's third assignment, which is, "The court erred in overruling defendant's motion for a new trial," is too general to be considered.
The judgment is affirmed.
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Bolen-Darnell Coal Co. v. Rogers
... ... Rome, 94 Ga. 420, 20 S.E. 335; McQuillan ... v. Seattle, 10 Wash. 464, 38 P. 1119; ... Palestine v. Addington, 75 S.W. 322; ... Barry v. Terkildsen, 72 Cal. 254, 13 P ... 657. In the California ... the present case: ... "A ... sidewalk of a street in a city not near a crossing may be ... taken by one passing over it to be a safe and not a ... dangerous ... ...
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Shawver v. American Ry. Express Co.
...S. W. 557; City of Houston v. Isaacks, 68 Tex. 116, 3 S. W. 693; City of Sherman v. Nairey, 77 Tex. 291, 13 S. W. 1028; City of Palestine v. Addington, 75 S. W. 322; Texarkana Telephone Co. v. Burge et al., 192 S. W. 807; City of Dallas v. Webb, 22 Tex. Civ. App. 48, 54 S. W. 398. That such......
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Bolen Darnall Coal Co. v. Rogers
...of Rome, 94 Ga. 420, 20 S. E. 335; McQuillan v. City of Seattle, 10 Wash. 464, 38 Pac. 1119, 45 Am. St. Rep. 799; City of Palestine v. Addington (Tex. Civ. App.) 75 S. W. 322; Barry v. Terkildsen, 72 Cal. 254, 13 Pac. 657, 1 Am. St. Rep. 55. In the California case cited above the court used......
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Edgeworth v. City of Pelly, 11542.
...streets of Sweetwater and testified that he might have seen the wire he fell over had he been looking. See also City of Palestine v. Addington, Tex.Civ. App., 75 S.W. 322. Whether the plaintiff was guilty of contributory negligence under the facts of this case was a question of fact for the......