City of San Antonio v. Chabot

• Decision Date: 12 November 1958
• Docket Number: No. 13384,13384
• Citation: 318 S.W.2d 485
• Parties: CITY OF SAN ANTONIO, Appellant, v. Olive J. CHABOT, Appellee.
• Court: Texas Court of Appeals

Page 485

318 S.W.2d 485

CITY OF SAN ANTONIO, Appellant, v. Olive J. CHABOT, Appellee.

No. 13384.

Court of Civil Appeals of Texas, San Antonio.

Nov. 12, 1958.

Rehearing Denied Dec. 10, 1958.

Carlos C. Cadena, City Atty., Crawford B. Reeder, Asst. City Atty., San Antonio, for appellant.

Franklin Spears, San Antonio, for appellee.

POPE, Justice.

Plaintiff, Olive J. Chabot, recovered judgment for $3,500 against defendant, City of San Antonio, upon a jury verdict, for personal injuries she sustained when she stepped into a hole in a sidewalk in downtown San Antonio, and fell to the sidewalk with great force and violence. The jury found that the hole was a defective condition, which term was defined to mean 'such a condition as an ordinary prudent person in the exercise of ordinary care would not permit to exist because it is likely to produce harm.' The jury found that City had knowledge of the defect, that its failure to remedy the defect was negligence and a proximate cause, that plaintiff did not fail to keep a proper lookout, that the defective condition was not open and obvious, and that the accident was not the result of an unavoidable accident. City appeals upon the points that the trial court should have sustained its motions for instructed verdict and for judgment notwithstanding the verdict. City claims, as a matter of law, that it had no duty to remedy the defective condition which was trivial and inconsequential.

Plaintiff, on a clear day, while walking in a southerly direction along the west side of Losoya Street in downtown San Antonio, at about four o'clock in the afternoon of October 1, 1956, stepped into a small hole in the concrete sidewalk. Actual measurements showed that the hole was fifteen-sixteenths of an inch deep when the dirt was cleaned from the hole. Plaintiff testified that the hole was filled with loose dust and debris when she fell. The area around the hole was cracked in a jigsaw fashion. She testified that she did not see the hole because it was obscured by shadows and filled with dirt.

Plaintiff claims that she stepped with her left foot into the hole which was just large enough to hold the heel of her shoe. She was wearing oxfords with heels which were 'not too high nor too low.' She testified: 'I mean my heel went down in the hole and apparently fitted into it enough to stay there until I was thrown with such violence that it pulled out.' She suffered injuries to her hip which kept her bedfast several months. Plaintiff is sixty-nine years old, and at the time of this incident she carried a cane because of a former hip injury which had satisfactorily mended, but she wore a small tap on her left heel to compensate for a slight limp.

City urges that the hole was so small and trivial that it imposed no duty upon the City as a matter of law. The sidewalk on which plaintiff was walking was built in slabs with expansion joints. As plaintiff walked south she approached the hole which was on her side of an expansion joint. The concrete had disintegrated and crumbled out, forming a triangular shaped hole. The apex of the triangle was toward the plaintiff. A photograph with a ruler beside the hole shows that the distance from the apex to the base was about six inches. Near the apex, the triangle was about one inch wide, and at the base it was about four inches wide. Even when all the dirt was cleaned from the hole, it was less than one inch deep at its deepest point. City has inspectors whose duties are to maintain and repair sidewalks. The cost of replacing the sidewalk was about seventy-five cents per square foot, and for replacing the whole slab in which the defect existed the cost would be about thirty dollars. Thousands of such small defects exist in the City's downtown sidewalks. On at least two previous occasions during a twenty-two-year span, two other persons had fallen at the same place, and on at least one occasion, eleven years earlier, the City was notified about the hole.

A municipality is required to exercise ordinary care in constructing reasonably safe sidewalks and streets and in maintaining them. Stinnett v. City of Waco, 142 Tex. 648, 180 S.W.2d 433; City of Galveston v. Dazet, Tex., 19 S.W. 142. In applying the rule courts must first determine whether or not, as a matter of law, a defect is so trivial as to impose no duty upon a city. It the court determines that the defect is not so trivial, there remains a jury question on the issue of the city's negligence. In both instances the basic problem is the same, whether the city exercised ordinary care, but in the one, the court determines the problem as a matter of law; in the other, the...