Municipal Paving Co. v. Donovan Co.

• Decision Date: 23 December 1911
• Citation: 142 S.W. 644
• Parties: MUNICIPAL PAVING CO. v. DONOVAN CO.
• Court: Texas Court of Appeals

142 S.W. 644

MUNICIPAL PAVING CO. v. DONOVAN CO.

Court of Civil Appeals of Texas. Dallas.

December 23, 1911.

Rehearing Denied January 13, 1912.

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Action by the Donovan Company against the Municipal Paving Company. Judgment for plaintiff, and defendant appeals. Affirmed.

L. L. Albright and J. J. Eckford, for appellant. Harry P. Lawther, for appellee.

TALBOT, J.

This suit was instituted by the Donovan Company, a private corporation, against the Municipal Paving Company, a private corporation, to recover damages in the sum of $750 for injuries to appellee's horse and buggy. Upon a trial before the court and a jury plaintiff recovered judgment for the sum of $433.95, with interest thereon at the rate of 6 per cent. per annum from August 20, 1907, and the defendant appealed. The petition alleged, in substance, and the evidence was sufficient to establish, the following facts: The Donovan Company were undertakers in the city of Dallas. August 20, 1907, Pat Donovan, the manager, in an undertaker's buggy, was proceeding east on Elm street to the Union Depot to receive a body from Terrell. Between Preston street and the Houston & Texas Central Railroad tracks a steam roller belonging to appellant and being driven and in charge of Frank J. Brown, an employé of the company, and a son of F. O. Brown, its president, was proceeding west on Elm street. Donovan was driving a young horse six years old, weighing about 1,200 pounds, sound and city broke. The vehicle was what was known as an undertaker's "first call" buggy, whose market value at the time was $310. Donovan was on the south and right-hand side of the street. There was a double street car track on Elm street, and the steam roller was coming straddle the north rail of the north track. The roller made quite a noise, and its appearance and the noise was calculated to frighten horses, and, when within about 50 feet of the steam roller, the horse, frightened at the appearance, noise, and approach thereof, began to cut up. Donovan did what he could to control the horse, and waved his hand and halloaed at the man upon the steam roller to stop. Immediately in front of Donovan was a man with a horse and wagon, and that horse, also frightened at the steam roller, was backing the wagon into Donovan's horse. The man driving the steam roller (Frank Brown), although facing west and looking directly at Donovan (so the latter testified), did not stop the roller, nor even slacken its speed, and, the same coming on, Donovan's horse became unmanageable, shied, wheeled, turned over the buggy, and ran away, dragging Donovan on the street under the buggy. The horse ran onto the sidewalk and against a telephone post at the corner of Elm street and the Houston & Texas Central Railroad, demolishing the buggy and breaking its leg. The horse was caught and led back to a livery stable at Preston and Elm streets, where, upon being examined by Dr. Warner, a veterinary, it was, upon his advice and direction, shot. The appellee's driver in charge of the horse and buggy was not guilty of negligence contributing to the accident and damage sustained by appellee, and the verdict is not excessive. At the time of the accident there was in force in the city of Dallas the following ordinance:

"An ordinance prohibiting the operation and movement of steam engines in the city of Dallas otherwise than on railroad tracks.

"Be it ordained by the city council of the city of Dallas:

"Section 1. That it shall hereafter be unlawful for any one to operate or move in any manner any engine propelled by steam power over any street, avenue, alley or highway of the city of Dallas, except the same is operated or moved on a railway track provided for such purpose.

"Sec. 2. That in the event it shall be necessary to move any steam engine over any street or highway of the city of Dallas for the purpose of transporting same from the seller to the purchaser, the same may be done upon a special permit in writing secured from the mayor, designating the streets over which same may be transported. The provisions of section 1 shall not apply to any engine used by any contractor engaged in constructing, paving or repairing streets, or on public works, provided the consent of the mayor is first obtained to the use of such engine.

"Sec. 3. That any one violating this ordinance shall be subject to a fine of not less than ten dollars and not more than two hundred dollars.

"Passed: April 27th, 1903. Correctly enrolled, May 15th, 1903. C. G. Morgan, Finance and Revenue Committee.

"Approved May 18, 1903, Ben. E. Cabell, Mayor.

"Attest: I. A. Moore, City Secretary."

The first and second assignments of error complain of the trial court's action in overruling defendant's special exceptions Nos. 1 and 2 to plaintiff's petition. The propositions contended for under these assignments are: (1) "The terms of the ordinance denying to a contractor using an engine in repairing a street, the entire use of a public street without the consent of a person who at the time may be mayor of the city, and prescribing no conditions which such contractor may comply with in order to entitle him to the use of the street or such person's consent, but compelling him to be subject to the arbitrary will of a person, is the delegation of the legislative power to a body not contemplated or recognized by law, and is unconstitutional, null, and void." (2) That such an ordinance is an unreasonable limitation and denial of a citizen's inalienable right to the use of a public highway, and is therefore null and void.

We are of the opinion the ordinance is within the express powers granted in the charter of the city of Dallas, and is not unreasonable and void. The charter of said city confers upon its governing body, among others, the following powers, namely: (1) "To control and regulate the location and use of steam engines in the city, and prescribe the qualifications of persons operating and running the same, and to adopt such rules and regulations in relation thereto as may seem best for the public safety and comfort." (2) "The city council shall have exclusive control and power over the streets, alleys, crossings, highways, and public grounds in the city, and to abate and remove all encroachments or obstructions thereon, to open, alter, abolish, widen, extend, establish, regulate, grade, pave, clean, or otherwise improve said streets and to protect the same from all encroachments and injury of any kind whatsoever."

The passage and adoption of the ordinance in question under the powers here conferred was but the legitimate exercise of the police power of the state over the subject to which it relates. That the Legislature, or its delegated agents, in the exercise of this power, may prescribe regulations for the comfort and safety of the public, which do not violate any of the provisions of the organic law, cannot be questioned; and it has been repeatedly held that laws and regulations necessary for the welfare of the community, though they may disturb the enjoyment of individual rights, are not unconstitutional.

The ordinance in question is not discriminatory by its provisions. All persons engaged in the operation of a steam roller are treated alike. They are subject to the same restrictions and...