City of Waco v. Criswell, 2201.

• Decision Date: 28 March 1940
• Docket Number: No. 2201.,2201.
• Parties: CITY OF WACO v. CRISWELL.
• Court: Texas Court of Appeals

141 S.W.2d 1046

CITY OF WACO v. CRISWELL.

No. 2201.

Court of Civil Appeals of Texas. Waco.

March 28, 1940.

Rehearing Denied June 27, 1940.

Appeal from District Court, 74th District, McLennan County; Giles P. Lester, Judge.

Action by T. T. Criswell against the City of Waco for personal injuries claimed to have been received when an automobile in which plaintiff was riding struck part of a storm sewer in a street. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

George W. Morrow, City Atty., and Mabel Grey Howell, Asst. City Atty., both of Waco, for appellant.

Fitzpatrick & Dunnam, of Waco, for appellee.

TIREY, Justice.

This is a suit for damages against the City of Waco for personal injuries to T. T. Criswell, who was plaintiff below. Plaintiff's cause of action was based on the alleged negligence of the city in its relation to the construction and maintenance of a drainage ditch or storm sewer within the traveled portion of South 3rd Street in the city limits. The case was submitted to a jury upon special issues and resulted in verdict and judgment for the plaintiff.

The evidence disclosed that South 3rd Street from curb to curb is 44 feet and that the same is squeegeed. At a point 56 feet north of the abutment to a bridge across Waco Creek, on the west side of Third Street, there is a storm sewer, extending from the curb into the street 3.8 feet. The height of the vertical front of the sewer is 2 feet and 9 inches. There is also a storm sewer on the east side of the street approximately opposite the one on the west side, and these sewers reduce the width of the traveled portion of the street from 44 feet to 36 feet. The top of the sewer is covered by an iron grating that lies flush with the street. There was no grating or covering over the mouth or opening to the sewer. The sewer was constructed some twenty-five or thirty years before plaintiff suffered his accident and injuries. South 3rd Street is a heavily traveled street.

Just after dark on the day of the accident the appellee was in his own car, which was being driven by Lloyd Barton after a joint business trip to Waco. Appellee and the driver of his car were going south on said South 3rd Street in order to leave the city and go to their homes in Marlin, Texas. As they approached the point of the accident in question they observed a car going north, and just before they could pass the first car, another car coming north attempted to pull around and pass the first car approaching, at which time the driver of appellee's car pulled over to his right in order to give more room. When he did so, his right front wheel struck some part of the storm sewer and was driven back under appellee's car, causing the driver to lose control of the car, which continued southward and struck the abutment of the Waco Creek bridge. Appellee was thrown out of the car by the impact, and, as a result of such fall, suffered the injuries complained of.

Plaintiff, among other things, charged (1) that the city negligently constructed and maintained the storm sewer in the traveled portion of the street commonly used by the traveling public; (2) that it failed to exercise ordinary care in keeping said street at said place in a reasonably safe condition for automobiles to pass over; and (3) that it negligently failed to place over the entrance to said drainage ditch and storm sewer an iron or steel grating so as to permit automobiles to drive over same without injury or damage to the occupants thereof. The jury found that the city maintained the entrance to said storm sewer out into the traveled portion of the street, and further found that it was not guilty of negligence in so doing. It further found that the city failed to have over the entrance to said storm sewer an iron or steel grating so as to permit automobiles to drive over same without injury to the occupants of said cars, and that the failure of the city in not having an iron or steel grating over the entrance to the storm sewer rendered said street in a condition that was not reasonably safe for the use of the public traveling in automobiles thereon. The jury further found that the city was guilty of negligence in not having an iron or steel grating over said entrance to the storm sewer, and that such negligence was the proximate cause of the injury to the plaintiff. It further found that the driver of the car was driving in excess of twenty miles per hour at the time of the accident in question; and further found that his rate of speed did not proximately contribute to cause the injuries and damages to the plaintiff. The jury acquitted the driver of the car and the plaintiff of all other acts of negligence.

It is the city's contention that since the jury found that it was not negligence for it to maintain the sewer in the street at the place where it maintained the same, and since there was no evidence of negligence on the part of the city in its failure to construct and place a steel or iron grating over the entrance to said storm sewer, the trial court should have granted its motion for judgment non obstante veredicto, or, in the alternative, should have granted it a new trial. We think this contention must be sustained. The plaintiff called as his witness the city engineer, presumably a hostile witness, as provided in amended Article 3769c, Vernon's Annotated Civil Statutes. The city engineer testified with reference to the storm sewer, in part, as follows: "From the amount of water that goes down Third Street, it is the only type that will effectively carry all of the water without damming up and possibly overflowing." He further testified, in part, that the storm sewer in question was constructed from twenty-five to thirty years before the accident in question, and...