Galveston Land & Improvement Co. v. Levy

• Decision Date: 28 March 1895
• Citation: 30 S.W. 504
• Parties: GALVESTON LAND & IMPROVEMENT CO. v. LEVY et al.
• Court: Texas Court of Appeals

30 S.W. 504

GALVESTON LAND & IMPROVEMENT CO. v. LEVY et al.

Court of Civil Appeals of Texas.

March 28, 1895.

Appeal from Galveston county court; S. S. Hanscom, Judge.

Action by J. Levy & Bros. against the Galveston Land & Improvement Company. Judgment for plaintiffs, and defendant appeals. Reversed.

Thomas M. Joseph, for appellant. Jas. B. & Chas. J. Stubbs, for appellees.

WILLIAMS, J.

Appellees, who are liverymen, sued to recover damages for injuries to one of their horses, received by coming in contact with a wire fence upon property of defendant, while being driven by one Gombert, to whom appellees had hired the horse. Gombert was returning to the city from a trip down the island, and, according to plaintiffs' evidence, was driving along an old road, at an ordinary gait, when the horse came against the fence, which had been built across such road by defendant, and received the injury complained of. The fence was on defendant's land, but could not be easily seen in the twilight; and we assume that it was not seen by Gombert, and that he was excusable in failing to see it though he did not testify. If defendant was guilty of negligence in having the fence where it was, the facts in the record are not sufficient to show it. It is not shown whether or not the road referred to in the testimony as the "old road" had been in common use before or was in use at all at the time the fence was built, nor are any circumstances stated from which it may be inferred that Gombert had the right to suppose that it was still open. On the contrary, the testimony indicates that there are two public streets, which, near the place of the accident, intersect each other at right angles. It is not shown that these were not the established and well-known thoroughfares of travel, as one would naturally suppose them to be, and no explanation is offered of the fact that Gombert, instead of following them, was undertaking to follow the old road, which the evidence shows had been crossed by this fence for about three months. It may be that the owner of land through which runs a road which, though not public, is in common use, in building across such a road a fence from which injury to travelers may result, should take some precautions to give notice of the change, and from the failure to do so would incur liability to persons injured while using the road in ignorance of the erection of the fence. As to this it is unnecessary to express any opinion. But, admitting the existence of a duty to take proper precautions to give notice of such a change, it would certainly not continue after the fence had been built for so long a time as to become generally known, and by its mere...