Edgeworth v. City of Pelly, 11542.

• Decision Date: 24 June 1943
• Docket Number: No. 11542.,11542.
• Citation: 173 S.W.2d 254
• Parties: EDGEWORTH v. CITY OF PELLY et al.
• Court: Texas Court of Appeals

173 S.W.2d 254

EDGEWORTH v. CITY OF PELLY et al.

No. 11542.

Court of Civil Appeals of Texas. Galveston.

June 24, 1943.

Rehearing Denied July 15, 1943.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Action by Mrs. Cynthia Edgeworth against the City of Pelly and another for personal injuries resulting from a fall when plaintiff stepped into a hole in a sidewalk parkway. Judgment for defendants, and plaintiff appeals.

Affirmed in part, and reversed and remanded in part.

J. A. Copeland, of Houston, for appellant.

Shannon L. Morris, of Pelly, and Mark M. Carter, of Goose Creek, for appellees.

CODY, Justice.

This is a personal injury suit brought in the usual form against the City of Pelly and its Mayor, jointly and severally, to recover damages resulting to plaintiff from a fall when she stepped into a hole which was located between the paved portion of a sidewalk and the curb of Nazro Street in the City of Pelly. The hole in question was one in which a water meter or cut-off was maintained. Plaintiff alleged that the open condition of the hole was known to the City, and that the Mayor had acknowledged its dangerous character for pedestrians before the accident here involved, and stated that it would be fixed.

When plaintiff rested her case, and before introducing any evidence, defendants moved for an instructed verdict stating the grounds therefor in writing. The court granted the motion and rendered judgment for defendants. If plaintiff had presented any substantial evidence which would warrant a verdict in her favor, when the evidence is considered in the light most favorable to plaintiff, the withdrawing of the case from the jury was reversible error. This requires that a statement of the substance of the evidence be made.

The date of the accident was August 31, 1941; the time between 7 and 8 o'clock in the evening. It was then dark. Defendant Williams was then Mayor of the City of Pelly. Pelly is a city organized under general law. It has approximately 3500 inhabitants. Defendant Williams then owned and operated a store in the City of Pelly which was located at the intersection of Pruett and Nazro Streets, fronting on Pruett Street. The sidewalk in question lies between Williams' Store and Nazro Street. The principally traveled portion of the sidewalk is concrete, extending the length of the block, and four feet in width. Between the paved portion of the sidewalk and the curb of Nazro Street is a parkway, or grass covered ground, which is about 3 feet wide. A tree stands in the parkway, located by the evidence variously as being between 60 and 30 feet from the intersection of Nazro and Pruett Streets. Near this tree, but between it and Pruett Street, the hole in question was located in the parkway, less than a foot from the curb. Directly across Nazro Street lies a church, but it does not extend to Pruett Street. We here insert a diagram indicating thereon the two streets, the points of the compass, the relative positions of Williams' Store, the paved portion of the sidewalk, the parkway, the tree and the hole in the sidewalk, and the church: NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

At the time of the accident the plaintiff, a widow, was eighty-one years old. On the occasion in question, her purpose was to attend services at the church. The pastor of the church, the Rev. Mr. Woods, had gone by her home so that she might ride in his automobile. She rode in the back seat, seated between two other ladies. The pastor parked his automobile on the same side of Nazro Street that Williams' Store was located and across from the Church. Plaintiff was assisted from the car over to the paved portion of the sidewalk near Williams' Store. She and the ladies stood there talking a few minutes, and plaintiff decided to go on to the church. She proceeded from where she was standing on the paved portion of the sidewalk directly across the parkway, and in so doing stepped into the hole, fell, and was seriously injured.

There was no street light at the intersection of the streets, and it was then dark, and there was nothing to prevent anyone from stepping into the hole. It was not so dark but that it could have been seen. This occurred on a Saturday; on the following Saturday it was observed that the hole had been covered with a concrete slab, which was about a foot in diameter and was large enough to cover the hole, which was about 8 inches deep.

In 1939 or 1940, a Mrs. Long stepped into the hole and fell, as was testified by the witness, Mrs. Bert Fisher, and Mrs. Fisher then notified defendant Williams that Mrs. Long had broken her hip by stumbling in the hole, and Mr. Williams, who was then Mayor, said, "I better fix that hole or they will sue me and the City of Pelly." This was before plaintiff fell. The witness further testified that before Mrs. Long fell, her own daughter, a Mrs. Stubbs, had stepped...