Magnolia Petroleum Co. v. Long, 8852.

• Decision Date: 18 May 1932
• Docket Number: No. 8852.,8852.
• Citation: 51 S.W.2d 426
• Parties: MAGNOLIA PETROLEUM CO. v. LONG.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

51 S.W.2d 426

MAGNOLIA PETROLEUM CO. v. LONG.^*

No. 8852.

Court of Civil Appeals of Texas. San Antonio.

May 18, 1932.

Rehearing Denied June 22, 1932.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

Action by F. A. Long against the Magnolia Petroleum Company. From the judgment for plaintiff, defendant appeals.

Affirmed.

Geo. R. Gillette, of San Antonio, and Walace Hawkins, of Dallas, for appellant.

H. C. Carter, Perry J. Lewis, Champe G. Carter, Pat Long, and Randolph L. Carter, all of San Antonio, for appellee.

COBBS, J.

Appellee sued appellant for $50,000, alleging that appellant negligently caused and permitted water, grease, and oil to be upon the drive-in way that approached a gasoline filling station operated by appellant, and furthermore alleging that appellant was negligent for want of ordinary prudence and for violation of certain ordinances of the city of San Antonio as set forth in appellee's second amended original petition, and also alleging that appellant was negligent in failing to have such drive-in way cross-marked every four inches, and also alleging that appellant was negligent in that said drive-in way should have had a "float finish," and also alleging that appellant negligently caused and permitted said drive-in way to slant too much to the street, and also alleging that, by reason of said negligence, said driveway was a nuisance, and that same created a servitude upon said drive-in way or sidewalk which appellant failed to maintain in a safe condition, that on February 9, 1929, appellee was walking upon the sidewalk over which appellant was maintaining and operating a driveway as an approach to said filling station, and that while appellee was walking upon the driveway appellee was caused to fall by reason of appellant's negligence, whereby appellee's right leg was broken at the hip and other injuries were suffered by appellee.

After presenting exceptions, appellant, by special answer, pleaded that it was only a tenant of said filling station, which was and is owned by William L. Richter; that appellant never had control over the sidewalks and driveways, but that by law and the city charter same were controlled by the city of San Antonio; that, if defects therein existed as alleged by appellee, the city was responsible therefor, as having exclusive control and power over the streets, alleys, sidewalks, and public grounds; that said drive-in way or approach had been constructed before appellant occupied said premises under the permission of the city of San Antonio and approved by its city engineer after inspection by its sidewalk inspector; that said sidewalk and driveway had been constructed according to reasonable and customary plans and methods, and were not dangerous for their proper uses if ordinary care were used; that appellee negligently stepped from the sidewalk proper onto the slanting driveway or approach constructed for vehicles, and that, unknown to appellant's employees, a third party had been filling the radiator of his car with water and had permitted a small quantity of water to boil over and fall upon the cement floor of the filling station, thence trickling out upon the sidewalk and driveway, spreading to a width of about one foot; that at said time, being during daylight hours, said wet strip was plainly visible to any person using ordinary care, and that appellee negligently stepped off from said sidewalk onto said wet strip on said slanting driveway and thereupon slipped and fell; that appellee was negligent in stepping off upon said driveway, the slanting character of which was plainly visible, for the further reason that there was abundant room for appellee to walk on said sidewalk, which was approximately level and wholly clear of all defects or obstructions; that, by reason of the...