Gonzales v. City of Galveston

• Decision Date: 15 March 1892
• Citation: 19 S.W. 284
• Parties: GONZALES v. CITY OF GALVESTON.
• Court: Texas Supreme Court

19 S.W. 284

GONZALES v. CITY OF GALVESTON.

Supreme Court of Texas.

March 15, 1892.

Commissioners' decision. Section A. Appeal from district court, Galveston county.

Suit by Pauline Victoria Gonzales against the city of Galveston to recover damages for personal injuries. Verdict for defendant, by direction, and judgment thereon. Plaintiff appeals. Reversed and remanded.

E. D. Cavin, Hume & Kleberg, for appellant. H. W. Rhodes, for appellee.

COLLARD, J.

This suit was brought by Pauline V. Gonzales, the appellant, a minor, by her next friend, Anderes Gonzales, against the city of Galveston, to recover damages for injuries received by her, caused by the falling of pieces of lumber from a pile of lumber alleged to have been unlawfully in Twenty-Seventh street, and allowed to remain there; the city having notice of the fact. It seems that lumber had been piled in the street—carefully piled — by A. J. Perkins & Co., lumber dealers, and such a pile of lumber had been there in the street for some years; a part of the street being used by Perkins & Co. as a lumber yard. On the 13th day of May, 1890, a drayman, Peter Peterson, was hauling lumber loaded diagonally on his dray, and had occasion to turn into the street from an alley, and to pass by the pile of lumber in the street. In doing so, — and, he says, driving carefully, — his load came in contact with the pile of lumber, and knocked off some heavy pieces on the opposite side from him. The plaintiff, Pauline Gonzales, and another child, Maggie O'Ragan, were on the opposite side of the lumber pile, out of sight of the drayman. The falling lumber struck the children, killing Maggie O'Ragan immediately, and severely injuring the plaintiff. The petition is not objectionable, showing that but for the unlawful piling of the lumber in the street, and allowing it to remain there, which fact the city knew, the accident would not have occurred. The defense sat up was that the lumber was carefully and safely piled in the street by A. J. Perkins & Co., near the west sidewalk, so as to leave at the locality an open and unobstructed space for travel, in the usual mode, and that while the children were playing near the pile of lumber, between it and the west sidewalk, the drayman carelessly drove his load of lumber against the same, knocking off some of the pile, and so caused the injury, without any fault on the part of defendant, and that but for the careless act of the drayman the injury would not have occurred. It is also set up by defendant that the injury was not caused by any careless piling of the lumber. There was evidence tending to establish the facts set up in defense. The court instructed the jury as follows: "The proximate cause of plaintiff's injury was not the pile of lumber, but was the act of the drayload of lumber being driven against the pile of lumber, which, although on the street, was properly piled, and therefore the law will not, in such case, cause any liability on the part of the city; and you should find a verdict for the defendant." Plaintiff's case is based upon the theory that the placing of the lumber in the street was unlawful; that the city authorities knew it was there, and wrongfully and negligently suffered it to remain there, as an obstruction to travel; its charter giving it full control over its streets, alleys, and public ways, and its ordinance authorizing and requiring it to remove all obstructions therefrom. The city's liability is based upon its negligence in failing to remove the obstruction. The court refused instructions asked by plaintiff, presenting this view of the case. Error is assigned to the charge given, and to the rejection of the charges asked.

The first question to be determined by the jury was whether the city was negligent in failing to cause the...