City of Port Arthur v. Wallace

• Decision Date: 13 November 1942
• Docket Number: No. 4023.,4023.
• Citation: 167 S.W.2d 549
• Parties: CITY OF PORT ARTHUR v. WALLACE et al.
• Court: Texas Court of Appeals

Page 549

167 S.W.2d 549

CITY OF PORT ARTHUR v. WALLACE et al.

No. 4023.

Court of Civil Appeals of Texas. Beaumont.

November 13, 1942.

Rehearing Denied December 2, 1942.

Appeal from District Court, Jefferson County; W. S. Nichols, Judge.

Suit by J. C. Wallace, for himself and as next friend for his minor son, Jack Wallace, against the City of Port Arthur, for personal injuries received by Jack Wallace in a collision between one of defendant city's fire trucks and an automobile in which Jack Wallace was riding. From a judgment for plaintiff, the defendant appeals.

Affirmed.

B. T. McWhorter and Shivers & Keith, all of Port Arthur, for appellant.

Adams, Hart & Daughtry, of Beaumont, for appellees.

WALKER, Chief Justice.

J. C. Wallace brought this suit for himself and as next friend for his minor son, Jack, appellees, against appellant, the City of Port Arthur, for damages for personal injuries received by Jack on the 4th day of October, 1939, in a collision between one of appellant's fire trucks, driven by one of its employees, and an automobile in which Jack was riding, and for expenses incurred by J. C. Wallace. The theory of appellees' petition was that appellant negligently allowed its streets to become full of holes and ridges, which caused the rear end of the fire truck to swerve and strike the automobile in which Jack was riding. Appellant's answer was sufficient to support its points of error. Judgment was in favor of Jack, the minor, on the jury's verdict for the sum of $12,000 and in favor of the father for the sum of $500, from which appellant has regularly prosecuted its appeal.

Appellant's sixth point is that the lower court erred in overruling its motion for a peremptory instruction that, as a matter of law, on the undisputed evidence "there was no proximate causal connection between the condition of the streets at the intersection in question, and the injuries received by the plaintiff." This contention is overruled on the following statement of the evidence. The collision occurred on the 4th day of October, 1939, at the intersection of Stilwell Boulevard and Procter Street, in the corporate limits of the City of Port Arthur.

The City Engineer, on measurements made by him, testified as to the height and depth of the ridges and holes in the street intersection at or near the place of collision, that one depression in the streets had a depth of 1/8 th of an inch; another a depth of 1/4 th of an inch; another a depth of 1/4 th of an inch. There was one ridge with an elevation of one inch. There was a one inch ridge at the intersection, with a rise of about one inch which tapered off as it went north. Glaston Dominque, a former ambulance driver, testified that the proximate height of the ridge across the street was 2½ inches, a condition that had existed as far back as he could remember; as an ambulance driver he always "slowed down right there on both sides of Stilwell * * * on account of it being so bumpy"; the east side of Procter Street had always been pretty bumpy, "and we always slowed down for it"; the ridges slanted up about 14 inches wide; the height of four inches was about the center of the 14-inch mound, about four inches from the general level of the street as it approached the mound. Jerry Borel, the driver of a milk truck, drove his truck along Procter Street over the intersection where the collision occurred; at that point on the 4th of October, 1939, as Procter Street went into Stilwell Boulevard, it "was a sort of corduroy street, with holes in it; there was one high ridge higher than the corduroy effect generally. In driving over that intersection I would slow down my speed; I had broken three or four quarts of milk going over it; it was too bumpy in that particular section to go over it at the continued rate I was driving; I had been driving a milk truck for sometime, and it was always bumpy." John Patin testified that the ridge across the street at the place of collision was 3½ or 4 inches above the surface of the street, running all the way across the street. J. M. Stansbury testified that when he drove over the intersection in issue he slowed down in crossing it; there were cracked places in the cement; they made it a little rough in travelling over them; those cracks in the cement could have been possibly six inches across, some of them ten inches. J. B. Parker testified that just beyond the intersection was a deep hole in the street; the pavement was broken; he could not tell how deep the hole was, but it was about 2½ feet in diameter, and about 6 or 8 inches deep; the pavement was broken there; there were three or four ridges where the pavement had buckled up; a break in the pavement had formed the ridges; it was rough driving over the intersection; "you used to almost have to come to a stop there at those holes to go on through"; that condition had lasted for quite a while.

We now give the testimony of the parties involved in the collision and of eye witnesses to the collision. Captain Rachel of the Fire Department was riding on the seat with the truck driver at the time of the collision. As the truck entered the intersection it did not jump or jerk in any manner, but made an even right hand turn. The truck was 22 feet long and weighed something over 15,000 pounds. As the truck entered the intersection it did not move to the right nor the left, but went in a straight line until it got into the intersection and turned to the right.

Mrs. Rebecca Wallace, Jack's mother, the driver of the automobile involved in the collision, testified:

"Just before the collision I was travelling east on Stilwell Boulevard, intending to proceed on across Procter street. When I reached the intersection of Stilwell Boulevard and Procter street the light was green. As I approached the intersection I slowed down and changed gears, and was pulling into the intersection on Procter when I heard the siren and bell. I attempted to turn and go in the same direction the fire truck was going, and immediately the crash and collision occurred. I was driving on into the east half of Procter street at that time. Immediately after hearing the siren and bell I turned my automobile north on Procter street, attempting to avoid a collision. The green light did not change while I was in the intersection. I was not travelling fast but had slowed down at the intersection and had shoved the gear in to second. My first thought was to try to avoid it and prevent a wreck. I was trying to turn my Ford to my left and go in a northerly direction, in the same direction the fire truck was travelling. By turning my Ford to the left I gave the fire truck plenty of room to miss my Ford if it had kept its same direction and had gone straight up Procter. While Mr. Rachel was trying to help me out of my car, I said to him, `Mr. Rachel I did everything I could to avoid that wreck' and he said `I know you did.' He said that he would not have hit me if he had not skidded. The ridge across the street at that point was high enough to require the driver of an automobile to slow up his car; you had to slow up to pass over that ridge or you would get a jar; if you were going too fast you would get quite a jar. You had to try to avoid those holes; if you could not avoid them and hit them it would jerk your steering wheel. I had had experience before the 4th of October driving over these streets at this point where I could not avoid the holes."

John Patin testified: "At the time of the collision I was about a block away facing Stilwell Boulevard, and about a block from Procter street, and could see the entire intersection. I saw the collision between the Ford automobile and the fire truck. As the fire truck went into the intersection it looked like the driver tried to turn it to the right, and as he did so the back end of the truck swung around and hit the Ford. The back end of the fire truck swung around violently and hit the Ford and turned it over. I do not think the Ford ever stopped; my impression was that it was going forward all the time down Stilwell Boulevard."

The witness Parker testified: "I saw the collision. I saw the rear end of the fire truck coming around, and there was a car across there, and they had swerved to miss it, and I saw the rear end of the fire truck as it struck this car. The front end of the fire truck was headed up Stilwell; the rear end of it was going around. When I noticed it it was right at the intersection there; the rear end was swerving around. When the fire truck crossed over that ridge its rear end was thrown out of line. The back end of the fire truck jumped as it was crossing the ridge. The back end of the truck, the left rear end of the truck, hit the left rear of the Ford automobile."

T. H. Copeland testified: "I recall a collision in October, 1939, at the intersection of Stilwell Boulevard and Procter Street between a Ford automobile and a city fire truck. I saw the Ford automobile before the collision. The fire truck came up the street and hit the Ford, just as it got across Procter. All of a sudden, it looked like the back end jumped about, I would say a foot or two high, and slid across the street and hit this car. I say that the back end of this fire truck looked to me like it jumped a foot or two, and slid, and hit the car, and knocked it over. That truck went around that corner, and the end jumped up, and slid across and hit the car; it was the rear end of the fire truck that jumped up from one to two feet; the wheels got off the ground and jumped up; of course it didn't stay up in the air; it came down and slid; it slid plumb over until it hit that car; the back end of the truck is what hit; it pivoted on the front wheels. I know that there is a ridge across Procter street immediately at its intersection with Stilwell Boulevard. The jumping of the truck occurred where that ridge is. I say the ridge is about three inches high, something like that, and that is the point...