City of Port Arthur v. Wallace
| Decision Date | 26 May 1943 |
| Docket Number | No. 8077.,8077. |
| Citation | 171 S.W.2d 480 |
| Parties | CITY OF PORT ARTHUR v. WALLACE et al. |
| Court | Texas Supreme Court |
In the trial court J. C. Wallace for himself and as next friend for his minor son, Jack Wallace, was awarded damages against the City of Port Arthur for personal injuries sustained by the minor in a collision between a fire truck belonging to the City and an automobile in which the minor was riding. The trial court's judgment was affirmed by the Court of Civil Appeals, one of the justices dissenting. 167 S.W.2d 549.
The theory upon which the suit was prosecuted and the judgment rendered was that the City negligently allowed its streets to become full of holes and ridges at and near the point of the collision, which condition of the streets caused the rear end of the fire truck to swerve and strike the car in which the minor was riding. The jury found in answer to special issues that the City was negligent in failing to use ordinary care "in maintaining the intersection in question" and in failing to repair the street by removing the holes and ridges, which acts of negligence were proximate causes of the collision.
As pointed out in the majority opinion of the Court of Civil Appeals, the City does not challenge these findings of negligence. They must therefore be accepted and the case decided upon the theory that the condition of the street at the point of collision was the result of the negligence of the City. There is not presented for decision the question of whether or not it would be negligence on the part of the City to fail to keep its streets in a first class state of repair, but only the question of whether the negligence of the City in the respects pointed out was the proximate cause of the injuries sustained by Jack Wallace. The facts are stated fairly and at length in the opinion of the Court of Civil Appeals and it would answer no purpose to restate them here.
According to the findings of the jury Jack Wallace was not negligent in any respect charged by the City, neither was any act on the part of his mother, the driver of the car in which he was riding, or on the part of the driver of the fire truck the sole proximate cause of the injuries. The position taken by the City is that its negligence in the manner of maintaining its streets was but the remote cause of the collision and resulting injuries; that its negligence in the manner of maintaining the street was broken by the negligence of the truck driver, for which it was not liable, and which constituted a new and independent cause. It takes the further position that it could not anticipate or foresee that its negligent manner of maintaining its streets would result in a collision between a fire truck and an automobile, and that at most it, by its negligence, merely created a condition which made the injury possible. It builds its argument here upon these assumptions, as stated in its application:
"Assuming now that the plaintiff's theory of this case is correct in this: (1) that there were `high ridges and deep holes' in the street; (2) that the presence of the ridges and holes caused the rear end of the truck to bounce around and strike the Wallace car; and (3) that thereby Jack Wallace received his injuries."
It is familiar law that in the construction and maintenance of streets a City acts in a corporate capacity and is therefore liable for the negligence of its officers and employees with respect thereto. On the other hand, providing fire protection is a governmental function and the City is not liable for the negligence of its officers and employees in the performance of that function. Authorities almost without number could be cited in support of the above, but, since the parties are agreed with respect thereto, it is thought sufficient merely to refer to 30 Tex.Jur., Municipal Corporations, Sections 295 and 298, for the citation of many Texas cases in support thereof.
In determining whether injuries in given cases resulted from negligence by the City in discharging its corporate function in maintaining its streets or from discharging its governmental function of furnishing fire protection the courts have been called upon to draw some rather close distinctions, which have occasioned some courts and text writers to cry out in favor of a rule of liability applicable alike to both functions. Be that as it may, the rule of liability in one function and nonliability in the other is so well established in this State that, if change is to be made, it should be made by the legislature and not by the courts. In the instant case the injuries resulted from negligence in both capacities acting concurrently. In...
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