City of Waco v. Landingham
| Decision Date | 22 February 1940 |
| Docket Number | No. 2135.,2135. |
| Citation | 158 S.W.2d 79 |
| Parties | CITY OF WACO v. LANDINGHAM. |
| Court | Texas Court of Appeals |
Appeal from District Court, McLennan County; R. B. Stanford, Judge.
Suit by Charlie Landingham against the City of Waco for injuries suffered by plaintiff while an employee of the City. From a judgment for plaintiff, defendant appeals.
Reversed and judgment rendered.
Certified question answered in, Sup., 157 S.W.2d 631.
George Morrow, City Atty., and Mabel Grey Howell, Asst. City Atty., both of Waco, for appellant.
Bryan & Maxwell, of Waco, for appellee.
This suit was brought by Charlie Landingham against the city of Waco for damages for personal injuries sustained by plaintiff while working as an employee of the city of Waco. A trial before a jury resulted in judgment for plaintiff for $10,500. The defendant appealed.
From the view which we take of the case, only one point need be discussed, and that concerns the character of notice of injury given by the plaintiff to the city. The charter of the city of Waco contains the following provision: The only notice filed with the city by plaintiff in compliance with the above quoted charter provision described the circumstances under which the injury occurred and the conditions causing the same as follows: "That on or about December 27, 1935, the claimant was on a truck owned by and operated by an employee of the city of Waco, to-wit, one Hal Payne, at the City Corral in the city of Waco; that the driver of such truck suddenly started the same and the claimant who was on said truck and attempting to alight therefrom, was caused by such moving to miss his footing and fell and sustained injuries as hereinafter set forth:" In plaintiff's petition, filed several months after the accident, he alleged that on the occasion in question he was an employee of the city of Waco; that the city used its own truck to haul its employees to and from their work; that the brakes on said truck were old and worn out and defective, and that the city of Waco was negligent in so furnishing a truck with defective brakes; that on the occasion in question plaintiff had returned from his work on the truck to the city corral and was preparing to alight therefrom. Plaintiff further alleged as follows: "Plaintiff further shows to the court that the driver of the truck in question at the time of his injury and at the time herein alleged, brought said truck to a dead stand; that the ignition had been turned off and the engine had been stopped; that the emergency brake had been pulled on and it was at this time that this plaintiff undertook to alight from said truck in the manner hereinabove described; that said truck was not moved by the said Hal Payne, the driver thereof, or any other person; that after this plaintiff had placed his feet on the rear wheel of said truck and the same weighing several thousand pounds, the exact number of pounds not being known to this plaintiff, and being on a slight incline, the same of its motion and by reason of the faulty and worn out brakes that were insufficient to hold the weight of said truck, moved some three to five feet and threw this plaintiff off of said truck onto his side and injured him as herein more fully set out; that the acts of the defendant in furnishing a truck with old and dilapidated brakes and with brakes that would not hold the truck when empty, was negligence and which said negligence was a direct and proximate cause of the injuries sustained by plaintiff."
It is generally held that the purpose of the notice, such as is here required by the city charter, is to advise the municipality in what the alleged negligence consists and give it an opportunity to investigate while the facts are fresh and the conditions remain substantially the same, thereby enabling it to better guard against fraudulent and unfounded claims and to settle the claim and avoid litigation, or to prepare for trial if it decides not to make settlement. 43 C.J. 1185. There must at least be a substantial compliance with the statute. The description of the cause or circumstances of the injury must be sufficient to direct attention with reasonable certainty to the substantial defect or act of negligence for such recovery is demanded. 43 C.J. 1200. Any material variance between the facts concerning the cause of the injury as set out in the notice and those offered in evidence tending to defeat the purpose of the notice is fatal. 43 C.J. 1240; 30 Tex.Jur. 558.
It will be noted that in the...
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Washington v. District of Columbia, 13095.
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