City of Polytechnic v. Redmon

• Decision Date: 01 November 1919
• Docket Number: (No. 9003.)
• Citation: 217 S.W. 730
• Parties: CITY OF POLYTECHNIC v. REDMON et al.
• Court: Texas Court of Appeals

217 S.W. 730

CITY OF POLYTECHNIC v. REDMON et al.

(No. 9003.)

Court of Civil Appeals of Texas. Ft. Worth.

November 1, 1919.

On Motion for Rehearing, December 20, 1919.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Action by K. C. Redmon against the City of Polytechnic and the Northern Texas Traction Company for personal injuries. Judgment for the Northern Texas Traction Company and Stone & Webster Engineering Company, and for plaintiff against the City, and the City appeals. Reversed and remanded as to all except the Stone & Webster Engineering Company, unless plaintiff file remittitur within 10 days, in which case judgment against the City affirmed, and judgment over against the Northern Texas Traction Company.

Samuels & Brown and James & Conner, all of Ft. Worth, for appellant.

Capps, Cantey, Hanger & Short and David B. Trammell, all of Ft. Worth, for Traction Co.

McLean, Scott & McLean, of Ft. Worth, for appellees.

CONNER, C. J.

Mrs. Beulah Redmon was injured by falling into an open culvert on the night of October 1, 1915, in the city of Polytechnic, and this suit was shortly thereafter instituted by appellee, her husband, for damages, with the result that it was tried and judgment herein rendered in appellee's favor on the 12th day of November, 1917. As instituted the plaintiff complained of the Northern Texas Traction Company, Stone & Webster Engineering Corporation, and the city of Polytechnic, damages being laid in the sum of $50,000. The court instructed a verdict in favor of the Northern Texas Traction Company and in favor of the Stone & Webster Engineering Company. No complaint is made of the action of the court in instructing a verdict for Stone & Webster Engineering Company, and no further reference to that corporation will therefore be made, it being proper at all events that the judgment as to that corporation be left undisturbed; and it will be so ordered. We think we may also, but briefly, notice the plaintiff's allegations of negligence, inasmuch as on this appeal from the judgment a sufficiency of proof to sustain the issues of negligence presented in the plaintiff's petition is not questioned. But, briefly stated, the plaintiff alleged that the defendants were engaged in improving Bishop avenue in the city of Polytechnic, and that during the course of the work the defendants, the city of Polytechnic and the traction company, transported gravel and other material to be used along the traction company's line of street railway; that while doing so a wagon or wagons in which the gravel was being hauled ran over and crushed a certain culvert or small bridge which had been theretofore constructed across a ditch or depression in the earth along the side of the street, and that in so doing the defendants acted negligently, and were negligent in permitting the defect thus occasioned to remain without repair and without warning to traveling pedestrians, in consequence of which, it was alleged that the plaintiff, in attempting to cross the street in the nighttime, and without warning and without knowledge of the damaged condition so produced, fell into the culvert and was seriously injured.

The city of Polytechnic answered by a general denial, a plea of contributory negligence, and further alleged that Bishop avenue extends within the corporate limits of the city of Polytechnic, and that the culvert in question was, in fact, wrecked by the wagon or wagons at the time being used by the traction company and operated by the servants and employés of said defendant, and that, if therefore the city was guilty of any default or negligence in respect to the condition in which said culvert or ditch was left, such default or negligence consisted merely of its failure to discover and remedy the condition caused and brought about by the acts on the part of its said codefendants, their servants and employés, and that such acts on the part of its said codefendants, their servants and employés, were the primary cause of any injuries plaintiff's wife might have suffered, if any.

The city further specially alleged that on or about the 1st day of September, 1911, the defendant traction company applied to it through its duly acting board of commissioners for a franchise to construct, maintain, and operate an electric railway line along Bishop avenue within the corporate limits of said city; that said franchise, for a period of 50 years, was duly granted on the 25th day of September, 1911; that by the terms of the ordinance so providing it was particularly specified that the work of construction and maintaining the said electric line should be done with as little inconvenience to the public as possible, and that the traction company in so constructing and maintaining its said line would hold the city of Polytechnic harmless for any damages to property or injuries to persons that might arise by reason thereof; that if plaintiff's wife was injured by reason of the broken, exposed, and dangerous condition of the culvert or ditch in question, as alleged by the plaintiff, then such injury arose by reason of the construction and maintenance and operation of said railway within the corporate limits of said city, and that hence the defendant the Northern Texas Traction Company, by virtue of its said franchise, which had been duly accepted by said company, became liable and bound to save and hold this defendant (the city) harmless from any and all liability in the premises, and the prayer, on the part of the city, was:

"That plaintiff take nothing by his suit, and that it go hence without day and with its costs; and, in the alternative, this defendant prays that, in the event that plaintiff recover against it in any sum, then that it have judgment in like sum over against its codefendant, * * * the Northern Texas Traction Company."

The traction company, in addition to a general denial, pleaded to the effect that it had nothing to do with the hauling of any gravel or other material which was being used in the work on this defendant's track; that this defendant had made a contract with one R. C. Allen to haul certain gravel to be used along and about its track, and that the hauling of such gravel was accomplished by said Allen and other persons employed by him, but that this defendant had no control over the hauling of the same, and no direction or supervision about or concerning the same, and no right to direct how the same should be done, and was only interested in the result accomplished, to wit, the delivery to it of certain gravel for which it had contracted to pay said Allen a definite and specific sum per square yard, at a definite and specific place; that if the structure and culvert described in plaintiff's petition was broken down, it was not done by any one in the employment of this defendant, or over whose actions this defendant had any control, and that this defendant was in no way or manner responsible for the same; that the said R. C. Allen was in the premises and at the time and place referred to, an independent contractor, for whose acts and the acts of those under him, this defendant was in no way or manner responsible.

The court, as stated, instructed a verdict in favor of the defendant traction company, and upon a trial of the issues presented in plaintiff's petition, the jury rendered a verdict in favor of the plaintiff against the city of Polytechnic for the sum of $20,000. Upon the city's motion for a new trial, the court required a remittitur of $10,000 and entered final judgment against the city in favor of appellee for a sum in like amount, and the city has appealed.

The appellant's first assignment of error is directed to the action of the court in peremptorily instructing the jury to return a verdict in favor of the Northern Texas Traction Company. The ordinance, under and by virtue of which the traction company was operating on and along Bishop avenue, reads as follows:

"Ordinance No. 26.

"An ordinance granting to the Northern Texas Traction Company, a corporation, its successors and assigns, the right, license and franchise to construct, equip, maintain and operate by electricity or some motive power other than steam a line of street railway along, over and upon and across certain and public grounds in the city of Polytechnic.

"Be it ordained by the board of commissioners of the city of Polytechnic:

"Section 1. That the right, license and franchise is hereby given and granted unto the Northern Texas Traction Company a corporation, its successors and assigns for the full term of fifty (50) years to construct, equip, maintain, and operate an electric railroad for the carriage of passengers and freight with all necessary single or double track, curves, turnouts, Y's, sidings, switches, connections, frogs, poles, wires and all other fixtures, appurtenances and belongings requisite, necessary or convenient for the construction, operation and maintenance of an electric railroad (or as may hereafter be required by said grantee, its successors and assigns during the life of this franchise) along, through, upon, over and across the following streets, alleys, public grounds and highways in the city of Polytechnic, Tarrant county, Texas, to wit:

"Beginning at the end of the present line of tracks of said grantee, Northern Texas Traction Company, on Avenue F near the intersection of Vaugh street in the city of Polytechnic; thence East on Avenue F to Bishop Street; thence south on Bishop street to and across Hanger avenue.

"Sec. 2. That said Northern Texas Traction Company, its successors and assigns shall construct its said railroad track or tracks as near the center of the streets as may be, or when such location is not practicable then at such place or places in, along and upon said streets as may be designated by the board of commissioners of said city of Polytechnic or some one acting for them; such track or tracks shall conform to the grades of said streets, said...