Jennings v. City of Ft. Worth

• Decision Date: 15 May 1894
• Citation: 26 S.W. 927
• Parties: JENNINGS v. CITY OF FT. WORTH.
• Court: Texas Court of Appeals

26 S.W. 927

JENNINGS v. CITY OF FT. WORTH.

Court of Civil Appeals of Texas.

May 15, 1894.

Appeal from district court, Tarrant county; N. A. Steadman, Judge.

Action by Frank Jennings against the city of Ft. Worth for personal injuries. Judgment for defendant, and plaintiff appeals. Affirmed.

Pruit & Smith, for appellant. Carlock & Powell, for appellee.

Statement of the Case, with Conclusions of Fact.

TARLTON, C. J.

In this suit the appellant seeks to recover from appellee damages for personal injuries sustained by him on December 27, 1890. The injuries were caused by reason of the dirt and soil from the side of a sewer ditch along one of the streets of the city sliding upon the appellant. He was engaged in the capacity of what is known as a "rod man" in the construction of a sewer system for the city, and had been so engaged for four months prior to the injury. He was at the time at work in connection with the city engineer, though not, it seems, under his control. It was the duty of the appellant to get into the ditch, and to assist the engineer, holding the rod of the engineer, so that the latter could take his sight from the instrument which he used for that purpose, to see whether the ditch was of the proper depth or not, securing thus the proper surface for the laying of the sewer pipes. While thus engaged, there was a sudden slide of earth, amounting to several tons, upon the appellant, fastening his feet and limbs so that he had to be extricated, and very seriously injuring him. He seeks recovery on the ground of the negligent failure of the city to properly brace the sides of the ditch. It was the practice of the city engineer to cause the sides of the ditch to be braced where symptoms of danger from the sliding or the caving in of the earth into the ditches manifested themselves, but this practice obtained only when there were evidences of such danger. In this instance the ditch gave no such signs. In fact, there was no evidence whatever of any impending danger, and inspection would have failed, and in fact did fail, to disclose any such indications; for the appellant testifies that before he got into the ditch he looked carefully, and failed to find any indication of trouble such as that which he experienced. He was 37 years old, a man of intelligence, and no special knowledge or experience was required to enable him to detect danger of the kind here referred to. In fact, he was as well fitted for that purpose as any of the city's employes, and his opportunities for knowing the existence of such danger were as good as those of the appellee. On February 5, 1891, he entered into the following agreement with the appellee: "The State of Texas, County of Tarrant. Know all men by these presents, that I, Frank...