Melvin v. Kane

• Decision Date: 29 October 1924
• Docket Number: (No. 1673.)
• Parties: MELVIN v. KANE.
• Court: Texas Court of Appeals

265 S.W. 1061

MELVIN v. KANE.

(No. 1673.)

Court of Civil Appeals of Texas. El Paso.

October 29, 1924.

Rehearing Denied November 20, 1924.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Action by Margaret Kane against M. Melvin. From a judgment for plaintiff, defendant appeals. Affirmed.

C. L. Galloway and Paul D. Thomas, both of El Paso, for appellant.

W. W. Bridgers and Chas. Owen, both of El Paso, for appellee.

HIGGINS, J.

Appellant's statement of the nature and result of this suit is substantially correct and is adopted. It is as follows:

"The appellee, Margaret Kane, instituted this suit in the district court of El Paso county. Tex., on October 30, 1923, against the appellant, alleging in substance that on or about the 19th day of June, 1923, appellant was the owner of and possessed of certain real property and the improvements thereon, said property being the southeast corner of block 16H Alexander's Addition to the city of El Paso, Tex., at the intersection of North Stanton and Missouri streets, and on which said property there were at all times referred to certain storerooms and a gasoline filling station, and which said storerooms abut on the sidewalk adjoining said premises, one of which said storerooms was at all times herein referred to used and occupied by one of appellant's tenants, who conducted therein a place of merchandise, and to which the public repaired on various and sundry occasions for making purchases; that a concrete sidewalk and curbing adjoin the premises and run parallel therewith on North Stanton street, which said sidewalk and curbing were and are a portion of said premises, and were constructed and maintained by the appellant, and with the maintenance, good repair, and safe condition he was chargeable at all times.

"The appellee further charges that appellant had negligently permitted a niche or broken place to be and exist in said curbing, and that by reason of such negligence, where she was approaching said store, she stepped on said curbing and in said niche; and by reason of the same she was thrown violently, with the result that her wrist was broken, causing her great damage, etc.

"Appellant answered by a general denial of all the allegations contained in appellee's petition, and further alleged that he was permitted by the city to build an entrance on said sidewalk to the filling station, and that said work was done in accordance with the rules and specifications of the city and was accepted by the city. Appellant further alleged that the appellee was guilty of contributory negligence in trying to enter said store in an unusual place, when a smooth, level sidewalk entered into said store. Appellant further alleged that under sections 56, 57, and 58 of the City Charter of El Paso, Tex., the city of El Paso has the complete and exclusive control and power over all the streets, sidewalks, and curbing of said city, and by virtue of said sections said city of El Paso has attempted to and has built and ordered to be built the sidewalks and curbings on the streets of said city in a uniform manner; that the curbing and sidewalks in front of appellant's premises are built in accordance with such plan of said city and under its direction, and said appellant was required to obtain a permit from said city to cut the curbing so as to make an entrance way to the sidewalks and buildings abutting said street; that all of said sidewalk, curbing, and entrance was built prior to the alleged accident, and in strict accordance with the plan adopted by said city."

A condensed statement of the jury's finding upon special issues is as follows: (1) The defendant or his agent or employé made the opening in the curb complained of. (2) In so doing they were negligent. (3) The plaintiff stepped into the hole, and was thereby caused to fall and sustain injury as alleged. (4) Such negligence was the proximate...