City of Tyler v. Ingram, 5824.

• Decision Date: 05 November 1941
• Docket Number: No. 5824.,5824.
• Citation: 157 S.W.2d 184
• Parties: CITY OF TYLER v. INGRAM.
• Court: Texas Court of Appeals

157 S.W.2d 184

CITY OF TYLER v. INGRAM.

No. 5824.

Court of Civil Appeals of Texas. Texarkana.

November 5, 1941.

Rehearing Denied December 4, 1941.

Appeal from District Court, Smith County; R. T. Brown, Judge.

Action by Clara Belle Ingram against the City of Tyler for personal injuries. Judgment for plaintiff, and from an order overruling a motion for new trial, defendant appeals.

Judgment affirmed.

Troy Smith, of Tyler, for appellant.

Jones & Jones, of Marshall, and Nat Gentry, Jr., of Tyler, for appellee.

JOHNSON, Chief Justice.

This suit is by Clara Belle Ingram against the City of Tyler to recover damages for personal injuries alleged to have been sustained as the result of defendant's negligence.

On September 30, 1938, and at all times here material, the city of Tyler owned and operated a public park consisting of about six acres located within the corporate limits and known as Bergfeld Park. The tract was equipped with the usual devices and was maintained by the city as a place of amusement and recreation. It contained an amphitheater in which the city gave free band concerts and other amusement programs once or twice a week, under supervision of its Superintendent of Parks. For purposes of advertising the superior quality of roses grown in and around Tyler and promoting the rose-growing industry in its trade territory, there was annually held in the city a rose festival, first under the auspices of the East Texas Rose Festival Ass'n and later under the Texas Rose Festival Ass'n, both incorporated. On the date above mentioned an entertainment crowning the queen of the rose festival was held in the amphitheater of Bergfeld Park, as in previous years. In preparation for the entertainment, the Texas Rose Festival Ass'n rented bleachers from the Louisiana State Fair, shipped them from Shreveport, Louisiana, to Tyler and reconstructed them in Bergfeld Park on the ground adjacent to, and supplementing the seating capacity of the amphitheater. The amphitheater, including the bleachers, was enclosed with canvas and wire fencing. Members of the Texas National Guard were employed by the Association to prevent persons without a pass or paid admission ticket from entering the enclosure. Clara Belle Ingram purchased a ticket and entered the enclosure, and was seated on said bleachers to witness the entertainment. The bleachers collapsed, and as the result she sustained severe injuries, breaking her back and paralyzing her to the extent of rendering her a cripple for life.

In her third amended original petition, plaintiff alleged in substance that the city sponsored and promoted the rose festival association and in connection with which various exhibitions were offered to the public for paid admissions; that the one in question was held on property owned and maintained by the city, with its express and implied consent and for the promotion of the interest, benefits and advancements of the city; that the city expressly and impliedly invited the public to make use of the premises, a public park; that the staging of such exhibitions and entertainments was calculated to and did benefit the city through increased trade and taxable property values; that the bleachers were negligently constructed on unlevel ground with insufficient braces and improper foundations; that the placing of the bleachers in the park, in the manner of their negligent construction, and the giving of the entertainment was all with the city's knowledge and consent; that with such knowledge and consent the city negligently and carelessly permitted the bleachers to be so erected and to so remain on such unlevel ground and in such dangerous condition, notwithstanding the provisions of its building code and ordinances against unsafe structures, and notwithstanding that the same constituted a nuisance, which the city in the exercise of ordinary care should have abated and prevented the use thereof by the public; and that the city negligently failed to perform its non-delegable duty of keeping its public park, including the bleachers erected therein, in a reasonably safe condition for use of the public.

The city answered by general demurrer, special exceptions, a general denial, a sworn denial of any partnership or joint adventure relations with either of the rose festival associations; and that if it were so engaged, its actions were ultra vires.

Upon trial of the case, in response to special issues, the jury found:

(1) That the location of the bleachers and the manner in which they were constructed on the ground, as they then existed, made them essentially dangerous for use of the public.

(2) That the City of Tyler, through its agents and employees, knew of said essentially dangerous condition, in time, by the exercise of ordinary care, to have prevented the use of the bleachers in such condition.

(3) Special issue No. 3 was conditionally submitted and was not answered.

(4) That such essentially dangerous condition of the bleachers was a proximate cause of the injuries sustained by plaintiff.

(5) That the City of Tyler through its agents, servants and employees failed to exercise ordinary care to prevent said bleachers, as situated, from being used by the public.

(6) That such failure of the City of Tyler to exercise ordinary care to prevent the use of said bleachers by the public was a proximate cause of plaintiff's injuries.

(7) That Ernest Wilks, Building Inspector for the City of Tyler, was acting in his official capacity when he inspected the bleachers.

(8) That during all the 30-day period immediately following her injuries plaintiff was mentally and physically incapacitated from either giving or authorizing any one to give notice in writing to the City Manager or the City Clerk of the City of Tyler of her injuries and of where and how it occurred and of her claim for damages.

(9) That the City of Tyler did not relinquish complete control and management of that section of Bergfeld Park in which the bleachers were erected to the Texas Rose Festival Ass'n on the occasion in question.

(10) That the Texas Rose Festival Ass'n did not construct said bleachers, as they were constructed at the time in question, without the aid and assistance of the City of Tyler.

(11) That plaintiff's injuries were not the result of an unavoidable accident.

In answer to Special Issues 12 and 13 the jury assessed the damages sustained by plaintiff.

Upon plaintiff's filing a remittitur of $1,544, judgment was entered for plaintiff upon the verdict. From an order overruling its motion for new trial, defendant perfected its appeal.

By its first proposition appellant charges that the trial court erred in overruling its motion for a directed verdict and its motion for judgment non obstante veredicto, because, it is contended, the undisputed evidence shows that the Texas Rose Festival Ass'n took complete possession and control of that part of appellant's public park on which the accident occurred, enclosed same and erected the bleachers thereon, all without appellant's consent; and that appellant received no compensation for such use of its property. The proposition is not sustained. The findings of the jury are not without proper support in the evidence. It is true that appellant issued no written permit authorizing the festival association to erect the bleachers and put on the entertainment in its park on the occasion in question, but it was all done with appellant's actual knowledge and implied consent, just as had been the custom during previous years. In fact, the testimony tends to show and the jury found that appellant never relinquished complete control of that part of the park so enclosed by the festival association. It further appears that such knowledge and consent of appellant extended to the manner in which the bleachers were permitted to be constructed. L. S. Pockrus, appellant's Assistant Building Inspector, was in the park in the afternoon before the bleachers were used that night, inspecting the wiring being placed in the amphitheater adjacent to the bleachers. He did not inspect the bleachers, but observed that they were located on sloping ground, Ernest Wilks, Chief Building Inspector for the city, testified to the effect that he inspected the bleachers, but not "very closely," during the day before they were used and collapsed that night. The first time he inspected the bleachers was about two o'clock in the afternoon, and he observed that some of the 1 × 12 seating boards were warped, rendering them unsafe, whereupon he made inquiry and learned that Mr. John Womble, who works for the Chamber of Commerce and is an official in the rose festival association, had charge of the seating for the entertainment in the park. Upon being unable to contact Mr. Womble at that time, Mr. Wilks instructed the young lady in Mr. Womble's office that the defective seating boards on the bleachers would have to be changed. She promised to get in contact with Mr. Womble. Later in the afternoon Mr. Wilks was notified that there would be a crew of men available at the bleachers, at five o'clock, to make the required changes in the bleachers. Mr. Wilks went to the park at the appointed hour, and, under his directions, the defective boards were changed, one or two 2 × 4's and a loose iron bar were nailed, and one 2 × 4 at the bottom of the bleachers was discarded. Whereupon, Mr. Wilks was asked if he would recommend any other changes and he did not direct that any other changes be made. So it appears that appellant not only had actual knowledge of and impliedly consented to the placing of the bleachers in its public park, but it advised in and impliedly approved the manner of their construction, and permitted them to be used in the dangerous condition resulting in their collapse. The negligent manner in which the bleachers were constructed consisted, in part, in setting them on sloping and unlevel ground, facing approximately west, with the northeast...