City of Waco v. Branch

• Citation: 5 S.W.2d 498
• Decision Date: 25 April 1928
• Docket Number: (No. 1096-5002.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: CITY OF WACO v. BRANCH et ux.
• Court: Supreme Court of Texas

5 S.W.2d 498

CITY OF WACO v. BRANCH et ux.

(No. 1096-5002.)^*

Commission of Appeals of Texas, Section A.

April 25, 1928.

Certified Question from Court of Civil Appeals of Tenth Supreme Judicial District.

Suit by A. L. Branch and wife, for themselves and as next friends for Mary Louise Branch, their minor daughter, against the City of Waco. From the judgment the City appealed to the Court of Civil Appeals, and the Court of Civil Appeals certifies a question to the Commission of Appeals. Question answered.

John McGlasson, City Atty., of Waco, for appellant.

Bryan & Maxwell, of Waco, for appellees.

HARVEY, P. J.

P. J. Certified question from the Court of Civil Appeals for the Tenth district. The facts are stated in the certificate as follows:

"This suit was instituted by appellants [appellees] A. L. Branch and wife, Lula Branch, for themselves and as next friends for Mary Louise Branch, their minor daughter, to recover damages on account of personal injuries sustained by said minor while riding in a Ford car on one of the driveways of Cameron Park in Waco, Tex. The city of Waco is incorporated under a freeholder's charter adopted by vote of the qualified electors residing therein. Said charter confers upon the commissioners of said city the power of eminent domain to acquire and appropriate property for various public purposes, among which purposes parks are included. Said charter declares that the ownership, control, and use of certain enumerated properties of said city shall be inalienable. Parks are included among the properties so enumerated. The city of Waco owns, maintains, and operates a certain tract of land situated within the corporate limits thereof and known as Cameron Park. Said park is open to the general public as a driving place, for picnics, and for other purposes for which a public park is generally used. It is supported solely by taxation, and no profit whatever is made out of the operation of the same. It is managed and controlled by or under the direction of a board of park commissioners appointed by the city. As an incident to the care, maintenance, and operation of said park, the park commissioners kept therein a flock of sheep, 26 in number. They were so kept, according to the testimony introduced, as a matter of interest to the public, as they fed upon the lawns, and they were also found useful for grazing purposes in keeping down weeds and brush in certain parts of said park.

"One of the main entrances to said park is an extension of Herring avenue eastward. This driveway begins at Fourth street, divides, and encircles a knoll on which a tree is located, reunites, and continues eastward, and again divides, one drive leading to the right and the other to the left of said point of division, all of which is shown by a diagram contained in the statement of facts. From the place where it encircles the knoll and tree to said point of division it is about 35 feet wide. The land on the south is some higher than the driveway, and there is a slight terrace along the south margin thereof. The land on the north is lower than the driveway, sloping to the sheep pen about 80 feet therefrom. Monday, July 5, 1926, was observed as a general holiday in Waco. A large crowd of people had assembled in this part of said park, and autos were parked on both sides of said driveway from the point of division on the east westward to where it divides to encircle said knoll and tree. There was just room between the parked autos for cars going in opposite directions to pass each other. About 3 o'clock on that afternoon one of the employees of said park commissioners took said flock of sheep from the pen southward across said driveway and was herding them on the lawn a short distance therefrom. Some time thereafter appellant [appellee] Mary Louise Branch was in a Ford coupé with her grandfather, who was driving the same. He was driving said car westward from the eastern point of division thereof, and another car was approaching from toward said knoll and tree, and while his attention was directed to the matter of...