Marshall v. Heard

• Decision Date: 17 April 1883
• Docket Number: Case No. 3624.
• Citation: 59 Tex. 266
• Court: Texas Supreme Court
• Parties: F. M. MARSHALL v. J. S. HEARD ET AL.

59 Tex. 266

F. M. MARSHALL

v.J. S. HEARD ET AL.

Case No. 3624.

Supreme Court of Texas.

Apr. 17, 1883.

APPEAL from Collin. Tried below before the Hon. Joseph Bledsoe.

Appellant brought this suit against J. S. Heard and Emerson, to recover damages on account of personal injuries received from a fall caused by a defective passage way leading from the second story of one building to the second story of another. Heard owned a two-story business house, and the Emersons owned a like house near to but not adjoining it. It was alleged that there was a front awning or gallery to each on a level with the second floor; that there was a passage way between the two galleries which constituted the usual and customary means of ingress and egress to the rooms on the second floor of the Heards' house; that the rooms in the second story of each of the buildings were rented to different parties for bed rooms and offices; that one White occupied a room on the second floor of the house belonging to the Heards, as a bed room and office, and that appellant, having business with White, was on his way to the room to see him, when the passage way gave way and precipitated him to the ground, seriously injuring his foot and leg. It was also alleged that the passage way was defective and did not have sufficient support; that this defect was well known to the appellees prior to the time of the accident, but that they had failed to repair the same, and had failed to give notice of the dangerous condition of the way.

Appellees demurred to the petition, demurrer sustained and judgment rendered dismissing the suit.

R. C. White, for appellant, cited Wharton on Neg., secs. 826, 827, 830.

R. De Armand, for appellee.

WATTS, J. COM. APP.

It appears from the allegations of appellant's petition and amendments that he was not on the passage way at the invitation, either expressed or implied, of the appellees, or either of them; but that he was there of his own accord to see a tenant occupying one of the rooms in the second story of the storehouse of the Heards. These rooms upon the second floor were rented to different persons as bed rooms and offices, while the Heards occupied the first story as a store for the sale of merchandise.

Nor does it appear from the allegations of the petition and amendments that the defects in the passage way existed at the time the rooms in the second story of the houses were leased. There is no allegation to the effect that the appellees had...