Morris v. City of Houston

• Decision Date: 07 April 1971
• Docket Number: 466,Nos. 465,s. 465
• Citation: 466 S.W.2d 851
• Parties: Mary Alice Allen MORRIS et vir, Appellants, v. CITY OF HOUSTON, Appellee. James F. CRUMP et ux., Appellants, v. CITY OF HOUSTON, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 851

466 S.W.2d 851

Mary Alice Allen MORRIS et vir, Appellants, v. CITY OF HOUSTON, Appellee.

James F. CRUMP et ux., Appellants, v. CITY OF HOUSTON, Appellee.

Nos. 465, 466.

Court of Civil Appeals of Texas,

Houston (14th Dist.).

April 7, 1971.

Rehearing Denied April 28, 1971.

John Gano of Jamail & Gano, Houston, for appellants.

Wm. A. Olson and Joseph G. Rollins, Houston, for appellee.

BARRON, Justice.

The plaintiffs, May Alice Allen Morris and Doshia Crump, joined by their respective husbands, brought these suits against the City of Houston for personal injuries. The two suits, having identical facts with the exception of damages alleged, were ordered joined for trial and were appealed together under an agreement that one statement of facts would suffice.

On March 2, 1965, the annual Fat Stock Show Parade was being held in downtown Houston. Mrs. Morris and Mrs. Crump were watching the parade from the front of Star Furniture Company situated at the intersection of Rusk and Milam Streets in Houston. The sidewalk on which they were standing was three feet above the street level, and the ladies were standing somewhat back of the crowd, at least far enough back to have people between them and a rope stretched along the street. The rope had been strung along both sides of the parade route and it was tied to light posts or parking meters, whichever was available. There was no rope strung at street intersections. City of Houston employees had made these preparations the night before. However, when the paraders approached an intersection, City of Houston policemen assigned to those particular blocks would string the rope across such intersections so that as the parade progressed, there was a continuous line of rope on each side of the street separating the spectators from the paraders. There was no other type of divider or barricade used. There is testimony that the rope was strung along the route in order to keep the spectators and the paraders separated; to prevent the spectators from entering the parade route, and not to keep the paraders off the sidewalks. This action is described as one of 'crowd control.' In addition to the rope there were four police officers at the intersection of Milam and Rusk Streets, two on each side.

The parade consisted of horse-drawn wagons and mounted men and women, and ahead of them and behind them were a number of school bands. J. W. Carter, a police officer stationed at the Milan and Rusk intersection, noticed that the rider of one of the horses in the parade was having trouble with her mount, which reared up twice, and that the third time the horse reared up it left the rider on the ground. The rider was identified as Mrs. Gladys Veatch, who testified that she purposely released control of the horse under the circumstances.

Carter and another officer, Price, started trying to catch the horse, which had started running counter to the parade route. The horse went over the ropes above mentioned, and after he had changed directions several times, the policemen were finally able to grab hold of him. In spite of this, however, the frightened animal dragged the policemen about twenty feet, and the horse started up the steps, three feet high, onto the sidewalk in front of Star Furniture Company where the horse knocked down and fell on plaintiffs, causing the bodily injuries complained of in these lawsuits.

In an effort to prove negligence on the part of the City, plaintiffs attempted specifically to predicate negligence on the City's failure to erect wooden or horse-proof barricades all along the parade route for approximately 24 blocks, and that at least the City should have put up the movable wooden barricades which it used on occasions, normally to block off construction work. Plaintiffs specifically sought to prove that it was negligence to use only a rope strung out along the route; to prove that the runaway horse amounted to a dangerous condition created by the City or was equivalent of a street defect for which the City was obligated in its proprietary capacity to prevent or control; and appellants attempted to show that the City failed to have sufficient personnel on duty to prevent parade animals from entering the spectator area. All answers to special issues above were in favor of the City of Houston. The jury also found that the occurrence in question was not the result of an unavoidable accident, and it found that the act of Mrs. Veatch in releasing control of the horse was the sole proximate cause of the accident. Judgment was rendered by the trial court in favor of the City of Houston on the verdict, and the plaintiffs have each appealed.

Appellants complain that the trial court erred in submitting special issue 9-A to the jury (unavoidable accident), in also submitting issue 9-B (sole proximate cause) and basing its judgment upon the jury's findings thereto; that the trial court erred in refusing to permit interrogation and admission of testimony of police officers Herman B. Short, Chief of Police, and J. W. Carter and to permit interrogation and admission of testimony of Jerry L. King, the city's traffic engineer, all in various particulars; and that the trial court erred in refusing to permit appellants to complete their bill of exceptions concerning the testimony of the Chief of Police.

We overrule appellants' first complaint concerning the submission to the jury of special issues number 9-A and 9-B. The unavoidable accident issue defined an 'unavoidable accident' to be an event not proximately caused by the negligence of any party to it, in compliance with the rule announced in Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379. The jury answered that the occurrence was not the result of an unavoidable accident. Special issue number 9-B inquired whether the act of Mrs. Veatch in releasing control of the horse was not the sole proximate cause of the occurrence in question. The jury answered that such was the sole proximate cause. Specific contention is made that answers to the two special issues above were conflicting and that the issues were duplicitous and consequently harmful to appellants. The test for irreconcilable conflict is stated in Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, as qualified by Bradford v. Arhelger, 161 Tex. 427, 340 S.W.2d 772. See also Siratt v. Worth Construction Company, 154 Tex. 84, 273 S.W.2d 615. The jury found no negligence on the part of the City of Houston. The unavoidable accident issue inquired, in effect, whether the event was Proximately caused by the Negligence of any party to the transaction. The 'sole proximate cause' issue inquired whether the Act of Mrs. Veatch in releasing control of the horse was not the sole proximate cause. No finding of the third person's negligence (Mrs. Veatch) is necessary in connection with a sole proximate cause issue, since the third person's conduct, negligent or otherwise, might be the sole proximate cause of appellants' injuries. No conduct of the City could then be a proximate cause, and the appellee City could not be liable under the findings and circumstances of this case. Plemmons v. Gary, 321 S.W.2d 625, 626 (Tex.Civ.App.), no writ; Gulf, C. & S.F. Ry. Co. v. Jones, 221 S.W.2d 1010, 1014 (Tex.Civ.App.), writ ref., n.r.e.; Ft. Worth & Denver City Ry. Co. v. Bozeman, 135 S.W.2d 275, 281 (Tex.Civ .App.), writ dismd. judgm. cor.; Hodges, Special Issue Submission in Texas, 60 (1959). And see Vol. 1, Texas Pattern Jury Charges, Sec. 3.04, p. 56. The issue of unavoidable accident, inquiring in effect whether the City or Mrs. Veatch was Negligent, is an entirely different inquiry from the sole proximate cause issue which inquired simply whether the Action of Mrs. Veatch in turning her horse loose was the sole proximate cause of the occurrence in question. See also Gobel v. City of Houston, 455 S.W.2d 776, 779 (Tex.Civ.App.), writ ref., n.r.e., and cases cited. We see no conflict or other error in the court's charge.

Appellants contend further that the trial court excluded from the jury, over objection by the City, important and controlling testimony sought to be elicited from the witnesses Carter, Short and King. The excluded testimony generally dealt with the duty of the City to use temporary wooden barricades along the parade route on the occasion in question. It was contended by appellants that the rope barricade was wholly insufficient and inadequate under the circumstances.

After Chief Short had testified generally, he testified on bill of exceptions that the temporary wooden barricades which the City used on occasion for closing off streets was a permanent indication that the street is blocked off; that they are not such type of obstruction which would prevent a person from walking or an automobile from being driven or traffic from moving over it, and for the most part such barricades are an indication or warning that an area is blocked. Short had earlier described the barricades by saying that they 'look like a long section of saw-horse. It would not be high enough to be described as fence barricades.' The Chief did not recall having seen any three-board barricades of a temporary nature owned by the City, and that the barricades which the City Public Works Department owns and which were used to block off an area were safety devices in that they indicated that an area was blocked...