Community Natural Gas Co. v. Henley, 6238.
| Decision Date | 09 January 1932 |
| Docket Number | No. 6238.,6238. |
| Parties | COMMUNITY NATURAL GAS CO. v. HENLEY et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Harry Preston Lawther, of Dallas, Tex., for appellant.
Webster Atwell and W. B. Hamilton, both of Dallas, Tex., for appellees.
Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.
This appeal is from a verdict and judgment finding appellant negligent in respect of a passageway through a pile of earth thrown up by it on the sidewalk and across a ditch which it had dug, along the east side of Sayles street at its intersection with Church. The grounds of negligence alleged were that, pursuant to its obligation and practice to provide foot passageways across the ditches which it dug in the course of its work, appellant had caused this one to be provided; or, if it had not done so, it knew, or in the exercise of ordinary care should have known, of its existence, and that the public was using, or was likely to use, the same as a passageway; that it was an insecure and unsafe one, and its existence there was negligence.
At the conclusion of the evidence which on plaintiffs' part was that there was a passageway through the pile of earth obstructing the sidewalk, that this passageway led to a concrete slab placed across the ditch, that it had been there for some time, and that others besides plaintiff had used it, that plaintiff, on her way to town after heavy rains had made muddily impassable the approach to the bridge in the street, had seen and undertaken to use the passageway through the piled-up earth and over the concrete slab, that the slab had turned under her foot, causing her injury, on defendant's part that it had not made any passageway or laid any concrete slab across the ditch, and that there was no such passageway or slab existent there; the trial court overruling defendant's request for an instructed verdict, submitted to the jury to find whether the matter had occurred as plaintiff and her witnesses had testified it did, and whether the defendant had made the passageway, or knew that the passageway and slab of concrete were there, and that the public was using or was liable to use them. It also charged the jury upon contributory negligence and proximate cause; in fact, upon all of the issues affirmative and defensive, nor was there any exception taken to the charge or any error assigned upon it, except the refusal to direct a verdict.
The errors assigned here are to that refusal, and to the admission, over objection, of certain testimony of defendant's witnesses Hamrick and Havens, adduced on cross examination.
Upon the peremptory instruction, appellant's position is that there was no evidence that defendant had constructed the passageway or laid the concrete slab complained of, and that there is equally none that it knew that the public was using, or would use, the passageway in question; that the verdict in this case may not rest upon the fact which it says was all the record establishes, that there was a passageway and a slab of concrete across the ditch; that there must have been proof also connecting the defendant with the making of the passageway or the laying of the slab, or charging it with knowledge that the passageway was there, and was being, or would likely be, used by the public which had been excluded from its regular passageway by the act of the defendant.
While it is doubtful whether there was evidence from which it could be inferred that appellant had constructed the passageway or caused the concrete slab to be laid across the ditch, and, had appellant asked for an instruction taking this issue from the jury, we should have had grave doubts of the correctness of its refusal, we think the matter stands very differently upon the other issue, whether, though it did not lay the passageway and slab down, it knew they were there, and knew, or was charged with knowledge, that the public would use them in crossing the ditch at that place. There is no direct evidence that any representative of the defendant knew of the existence of the passageway and the concrete slab across the ditch. There is evidence, however, that they had been there for some two or three days before the accident, that they appeared to constitute a passageway for the use of the public, and that this passageway had in...
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