City of Palestine v. Hassell

• Decision Date: 18 March 1897
• Citation: 40 S.W. 147
• Parties: CITY OF PALESTINE v. HASSELL.
• Court: Texas Court of Appeals

40 S.W. 147

CITY OF PALESTINE v. HASSELL.

Court of Civil Appeals of Texas.

March 18, 1897.

Appeal from district court, Anderson county; J. R. Burnett, Judge.

Action by William Hassell against the city of Palestine. From a judgment for plaintiff, defendant appeals. Affirmed.

A. G. Greenwood and T. B. Greenwood, Jr., for appellant. McMeans & Gill, for appellee.

PLEASANTS, J.

Appellee recovered judgment against appellant in the district court of Anderson county, for damages for personal injuries sustained by appellee through the alleged negligence of the appellant in permitting to be placed, and to remain, upon one of its streets, an obstruction, and by a collision with which appellee, without negligence on his part, was injured. The defendant answered by general denial, and by charge of contributory negligence on part of plaintiff. The judgment is assailed on three grounds: First, because the evidence conclusively shows that the appellee's own negligence was the proximate cause of his injury; second, because the verdict is contrary to the charge of the court, in this: the charge instructed the jury that, to authorize a verdict for the plaintiff, they must first find from the evidence that the plaintiff did not know, or could not have known, by the exercise of reasonable care and prudence, of the obstruction with which he collided, and that he used reasonable care to avoid the injury; and, third, because there was no evidence that appellant or its officers, in the exercise of ordinary care, could have discovered the peculiar situation of the structure against which the plaintiff collided, in time to have prevented his injuries. The evidence is that plaintiff, just as he stepped from the north door of the Magnolia saloon, upon the sidewalk, for the purpose of going to his place of business, which was adjoining the saloon, and immediately east therefrom, collided with the sharp edge of a table or counter of hard wood, 6 feet in length, 4 feet high, and 31 inches wide. This table or counter was placed upon the sidewalk by order of the proprietor of the saloon, and had been there continuously during each day from early morning till late in the afternoon for about three weeks. The plaintiff testified that he had seen the table on the sidewalk repeatedly before his injury, but that he had never seen it in the place it was when he collided with it; that on that occasion the western end of the table was even with the eastern side of the entrance to the...