Gabbert v. City of Brownwood, 2424.

• Decision Date: 12 November 1943
• Docket Number: No. 2424.,2424.
• Citation: 176 S.W.2d 344
• Parties: GABBERT et al. v. CITY OF BROWNWOOD.
• Court: Texas Court of Appeals

176 S.W.2d 344

GABBERT et al. v. CITY OF BROWNWOOD.

No. 2424.

Court of Civil Appeals of Texas. Eastland.

November 12, 1943.

Rehearing Denied December 10, 1943.

Appeal from District Court, Brown County; A. O. Newman, Judge.

Action by I. Oren Gabbert and another against the City of Brownwood for personal injuries sustained by named plaintiff as result of alleged negligence of defendant. Judgment for defendant, and plaintiffs appeal.

Reversed and remanded.

McMahon, Springer & Smart, of Abilene, for appellants.

R. L. McGaugh and E. M. Davis, both of Brownwood, for appellee.

FUNDERBURK, Justice.

I. Oren Gabbert and Texas Employers' Insurance Association brought this suit against the City of Brownwood to recover damages for personal injuries sustained by Gabbert as the result of alleged negligence of defendant. Gabbert, an employee of Banner Creameries, attempting to get into a truck of his employer, stopped at night on a state highway in the City of Brownwood, stepped into the open unguarded end of a culvert which had been constructed by the State Highway Department and fell several feet, sustaining injuries. Texas Employers' Insurance Association, compensation insurance carrier for Gabbert's said employer, paid the employee compensation and joined in the suit as owner of the cause of action by subrogation under authority of Vernon's T.C.S. art. 8307, sec. 6a.

The negligence charged to defendant was alleged as follows: "Plaintiffs allege that the City of Brownwood was negligent (a) in the construction of said culvert or in permitting same to be so constructed that same was built level with the ground and could not be seen by any person exercising reasonable precaution for his own safety, particularly at night; (b) in failing to erect around said culvert a guard rail or other structure to permit persons lawfully at the place where said culvert was built from falling into the same; (c) in failing to place a sign near said culvert calculated to warn the public and other persons lawfully at the place where same was built of the danger of falling into the same and consequent injury which might result from such fall."

After the evidence was in the Court sustained a motion of defendant to withdraw the case from the jury and render judgment for defendant, which, being done, plaintiffs have appealed.

As the case is presented to this court, there is but one question for decision, which, as is often true, may be variously stated. In perhaps its most general terms the question may be said to be whether, under the pleadings and conclusively established facts, the City of Brownwood had no legal duty respecting the safety of the state highway at the place of the injury. This statement of the question assumes that the absence of such duty is conclusive, notwithstanding the other elements of liability may involve issues of fact not conclusively established and as to which the Court could not properly withdraw the case from the jury and render judgment. In other words, since there can be "no actionable negligence in the absence of some duty which has been neglected or violated" (Independent Eastern Torpedo Co. v. Carter, Tex.Civ.App., 131 S.W.2d 125, 126, and authorities cited) the action of the court below in withdrawing the case from the jury and rendering judgment for defendant was proper, if, under the uncontroverted evidence, the City had no duty, as stated; otherwise, it was improper.

"A failure to provide a barrier or lights to warn or guard travelers against defects or unsafe places in the street", says Tex.Jur., "may be negligence which will render the city liable for resulting injuries." 39 Tex.Jur. p. 690, § 121. And again, "It is the duty of the municipality to erect barriers or rails along a street at places where they are necessary to make the way safe for travelers who exercise ordinary care—or, as otherwise stated, where there is a dangerous place which is in such proximity to the street as to render the highway unsafe for purposes of travel." 39 Tex.Jur. p. 693, § 123. These general propositions could not be applicable to a city in its relation to a street or highway or section thereof, if any, over which it had no jurisdiction. Such liability, when it exists, is incident to the City's jurisdiction over the streets and highways of the city. If such jurisdiction exists, then, as incident thereof, the duty exists to construct and/or maintain such streets and highways. If such duty to construct and maintain its streets and highways exists, that duty comprehends the further duty of so constructing and maintaining them with reasonable care for the safety of the public using such streets or highways. Hence, it may be said that the question for decision is whether under the pleadings and uncontroverted evidence the City of Brownwood had jurisdiction of the particular section of the state highway within its limits where the accident occurred.

The charter of the City of Brownwood provides that "the City of Brownwood shall have exclusive dominion, control and jurisdiction in, upon, over and under the public streets, avenues, alleys, and highways of the city * * *." (Italics ours.) If that provision is valid and has not been repealed by later Act of the Legislature, then we think it is determinative of the question to be decided. So it appears that the question under consideration may not inaccurately be said to be whether the exercise of "dominion, control and jurisdiction" of the City of Brownwood "in, upon, over and under the public * * * highways of the city" has by Legislative act or acts been taken from said City and conferred upon the State Highway Department. (Italics ours.)

If there has been any such transfer of jurisdiction it may be assumed, we think, that it resulted from the legislative act of which R.S.1925, Art. 6673, is a part and specifically the provision of said article which reads as follows: "The Commission [State Highway Commission] is authorized to take over and maintain the various State Highways in Texas, and the counties through which said highways pass shall be free from any cost, expense or supervision of such highways * * *."

It is settled by the decisions that the last quoted statutory provision did operate to transfer the former jurisdiction of counties and/or county commissioners' courts over state highways within county limits to the State Highway Commission. Robbins v. Limestone County, 114 Tex. 345, 268 S.W. 915; Iverson v. Dallas County, Tex.Civ.App., 110 S.W.2d 255; Wilbarger County v. Hall, Tex.Com.App., 55 S.W.2d 797; Nairn v. Bean, 121 Tex. 355, 48 S. W.2d 584; Alexander v. Singleton, Tex. Civ.App., 50 S.W.2d 893; Mosheim v. Rollins, Tex.Civ.App., 79 S.W.2d 672. It, therefore, appears that yet another way of stating the question to be decided is whether the transfer of jurisdiction over state highways in a county from the county commissioners' court of such county to the State Highway Commission effected likewise a transfer of the jurisdiction of the cities and towns in such county over state highways in such cities and towns to the State Highway Commission?

The jurisdiction of commissioners' courts over highways prior to the transfer of such jurisdiction, as to state highways, effected, as aforesaid by said article 6673, had been granted in very general terms as follows: "The commissioners' courts of the several counties shall have full powers and it shall be their duty to order the laying and opening of public roads when necessary, and to discontinue or alter any road whenever it shall be deemed expedient as hereinafter prescribed." R.S.1911, Art. 6860. This and other provisions defining powers and duties of the commissioners' court now appear as R.S.1925, Art. 6703. This grant of jurisdiction to commissioners' courts apparently had its origin in an Act approved July 29, 1876. 8 Gammel's Laws, p. 899. Upon that grant of authority in its relation to a highway in an incorporated city or town, the same question in principle as the one here involved arose at an early date when the Supreme Court had criminal, as well as civil, jurisdiction, in State v. Jones, 18 Tex. 874. The question in that case was stated as follows: "The main, and indeed only essential question presented is one of conflict of jurisdiction between the County Court of Goliad county and the Town Council of the town of Goliad, in respect to the authority of these two bodies over the roads, streets and thoroughfares which run through and are within the incorporated limits of the town." From the very interesting discussion we quote the following as showing the true identity in principle, as we think, of the question there decided and the question here presented for decision. Said the court: "The County Court does, it is true, possess a general jurisdiction, co-extensive with the limits of the county, to lay out and establish public roads and highways, but as that jurisdiction is conferred by a general law which is applicable to every county in the State, it is at all times subject to be changed or modified by special laws acting upon the same subject in particular counties, or special localities, though such change will not affect the operation of the general law, except in these particular localities which are intended to be taken out of the rule." (Italics ours.) The final conclusion was expressed as follows: "In view of the whole subject I am of the opinion that the County Court had no jurisdiction over the road in question at the time the defendant was appointed Overseer of it; that its appointment conferred upon him no authority to require the contiguous hands to work it, and had he made such requisition, the hands would not have been bound to obey it; and that as he possessed neither the legal right or ability to make the road, or to keep it in repair, he is not responsible for its want of repairs." (Italics ours.)

In 1891 this same question was again presented in Norwood v. Gonzales County, 79...