Parson v. Texas City

• Decision Date: 15 May 1953
• Docket Number: No. 15427,15427
• Citation: 259 S.W.2d 333
• Parties: PARSON et al. v. TEXAS CITY.
• Court: Texas Court of Appeals

Page 333

259 S.W.2d 333

PARSON et al. v. TEXAS CITY.

No. 15427.

Court of Civil Appeals of Texas, Fort Worth.

May 15, 1953.

Rehearing Denied June 19, 1953.

Beckhusen & Lerner, LaMarque, for appellants.

Armstrong, Bedford & Lambdin, Galveston, for appellee.

BOYD, Justice.

This is a consolidation of two suits, one by Ellis L. Parson and the other by J. E. Turner against the City of Texas City, for damages growing out of a collision of an automobile occupied by the wives of the plaintiffs with another automobile driven by one Raines, at a crossing of two streets in the city of Texas City, in which collision both ladies were injured, it being alleged that the collision resulted from the 'simultaneous display * * * of green or goahead lights to traffic moving in intersecting * * * directions at the intersection,' by a lighting signal suspended approximately thirty-five feet above the intersection, and that this condition of the lights had existed for several days, and created such an essentially dangerous traffic hazard as to constitute a nuisance. It was admitted that (1) the maintenance of a traffic control signal device at the intersection involved was not an unreasonable means of directing and controlling traffic at that intersection; (2) there was no appreciable risk of harm or damage to persons or property resulting from the installation of the traffic control signal device so long as it was properly maintained; and (3) neither automobile involved in the collision came into physical contact with the traffic signal, and neither changed its course either prior to or at the time of the collision in order to avoid physical contact with the traffic signal.

The City filed a motion for summary judgment on the ground that the pleadings of the plaintiffs failed to state a cause of action, in that the erection and maintenance of traffic signal lights involved a governmental function and that the negligent operation of such traffic signal lights cannot be the basis of recovery against the City. The motion for summary judgment was sustained and the plaintiffs appealed.

The appellants urge for reversal a single point to the effect that it was error to sustain the motion for summary judgment because the continued maintenance of the defective traffic light created an essentially dangerous hazard and was a nuisance, and that the City is liable for maintaining a nuisance even though it be in connection with the exercise of governmental power.

It is well settled that a city, in the exercise of a governmental as distinguished from a proprietary or corporate function, is exempt from liability for damages occasioned by its negligence in carrying out such function. City of Galveston v. Posnainsky, 62 Tex. 118; City of Port Arthur v. Wallace, 141 Tex. 201, 171 S.W.2d 480; City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.2d 57; Barnes v. City of Waco, Tex.Civ.App., 262 S.W. 1081, writ refused; Whitfield v. City of Paris, 84 Tex. 431, 19 S.W. 566, 15 L.R.A. 783; City of Houston v. Shilling, Tex.Sup., 240 S.W.2d 1010, 26 A.L.R.2d 935. Although there has been strong dissent from the holding that the maintenance and operation of an electric traffic control signal is a governmental function as being an incident to policing activities, Johnston v. City of East Moline, 405 Ill. 460, 91 N.E.2d 401, we think such holding is sustained by the great weight of authority. Baker v. City of Waco, Tex.Civ.App., 129 S.W.2d 499; Auslander v. City of St. Louis, 332 Mo. 145, 56 S.W.2d 778; Powell v. City of Nashville, 167 Tenn. 334, 69 S.W.2d 894, 92 A.L.R. 1493; Vickers v. City of Camden, 122 N.J.L. 14, 3 A.2d 613; Parsons v. City of New York, 273 N.Y. 547, 7 N.E.2d 685; Sandmann v. Sheehan, 279 Ky. 614, 131 S.W.2d 484; Dorminey v. City of Montgomery, 232 Ala. 47, 166 So. 689; Cleveland v. Town of Lancaster, 239 App.Div. 263, 267 N.Y.S. 673; Martin v. City of Canton, 41 Ohio App. 420, 180 N.E. 78; Kirk v. City of Muskogee, 183 Okl. 536, 83 P.2d 594; Tolliver v. City of Newark, 145 Ohio St. 517, 62 N.E.2d 357, 161 A.L.R., p. 1404; Avey v. City of West Palm Beach, 152 Fla. 171, 12 So.2d 881; Hodges v. City of Charlotte, 214 N.C. 737, 200 S.E. 889. Appellants concede that such is the law. However, it has long been established that an exception to such immunity exists when a city creates or maintains a muisance in connection with a governmental function. City of Fort Worth v. Crawford, 74 Tex. 404, 12 S.W. 52; Wiggins v. City of Fort Worth, Tex.Civ.App., 299 S.W. 468, affirmed, Tex.Com.App., 5 S.W.2d 761. Therefore, if the appellants have in fact alleged that the City created or maintained a nuisance, they have alleged a cause of action, and the summary judgment should not have been granted.

It appears that the case may be disposed of with the answer to this question: Is the continued maintenance of an automatic traffic control signal light which does not itself encroach upon a public street, but which is out of repair so as simultaneously to display green lights to traffic moving in intersecting directions, causing injury to a motorist, a 'nuisance' within the principle making a municipality liable for the maintenance of a nuisance while the City is engaged in a governmental function? We believe that under the authorities the question must be answered 'no.'

'Nuisance' covers many varied situations and is difficult to define. Kincaid v. Chicago, R. I. & G. Ry. Co., Tex.Civ.App., 119 S.W.2d 1084; McFarlane v. City of Niagara Falls, 247 N.Y. 340, 160 N.E. 391, 57 A.L.R. 1.

It has been held that for a city to be liable for creating or maintaining a nuisance, the nuisance must constitute an unlawful invasion of the rights of the complaining party. In Gotcher v. City of Farmersville, 137 Tex. 12, 151 S.W.2d 565, 566, it was shown that the City maintained a sewage disposal cesspool on land where young children customarily played. The top of the cesspool resembled a sand pile and there was no guard rail around the pit. The plaintiff's seven year old child stepped onto the surface of the cesspool, sank into the pit and was drowned. It was alleged that the cesspool, with its misleading appearance and unguarded as it was, constituted a nuisance for which the City ought to be held liable, even though it was engaged in governental function in maintaining the cesspool. The City's demurrer to the petition was sustained and Chief Justice Alexander, writing for the Supreme Court, in affiming the trial court's judgment, said: 'Plaintiffs' second contention is that the cesspool constituted a nuisance, and that by reason thereof the City is liable for damages caused by the maintenance thereof. There are authorities which hold that a municipality is liable for damages caused by the maintenance of a nuisance, even though the municipality in maintaining the same is engaged in the exercise of a governmental function. 43 C.J. 956; 30 Tex.Jur. 537. However, in order to create liability for the maintenance of a nuisance, the nuisance must in some way constitute an unlawful invasion of the rights of others. 46 C.J. p. 653, sec. 18. For example, in the case of City of Fort Worth v. Crawford, 74 Tex. 404, 12 S.W. 52, 15 Am.St.Rep. 840, a municipality operated a dump yard in such manner as to cause noxious and offensive odors to invade the premisses of an adjoining landowner and injure his health. No such facts are here alleged as are necessary to bring the cesspool in question within the class of the unisance there referred to. * * *'

In Braun v. Trustees of Victoria Independent School Dist., Tex.Civ.App., 114 S.W.2d 947, 948, writ refused, it was alleged that the trustees of the School District had caused or allowed a ligustrum tree near the buttress of the front steps of the school building to be pruned so that the branches were sharp pointed, 'resembling spears and daggers,' which condition was known to the trustees. The plaintiff's minor daughter fell off of the buttress, where it was customary for children to stand, and was severely injured upon coming in contact with the sharp limbs of the tree, and the cntention was that the tree, with its sharp branches in such close proximity to the buttress, created a hazardous and dangerous condition and constituted a nuisance erected or permitted by the trustees. A general demurrer was sustained to the petition, and in affirming, the Court of Civil Appeals said: 'What is the difference in alleging that the agents of the school district were negligent in maintaining the ligustrum tree under all the circumstances and in alleging that under all the circumstances the ligustrum tree was a nuisance and that the agents of the school were negligent in maintaining and not abating the unisance? The question of a nuisance becomes relevant when, by the maintenance of a nuisance, private property or property rights have been involved. * * * In addition to what we have above decided, we are of the opinion that the ligustrum tree under all the circumstances was not of such inherent danger as to be regarded in law as a nuisance, and this case presents nothing more than a negligence case. Calling the freshly pruned ligustrum tree a unisance does not make this a different suit than if appellant had simply alleged negligence in the maintenance of the ligustrum tree.'

In Brown v. City of Craig, 350 Mo. 836, 168 S.W.2d 1080, 1082, the plaintiff's husband lost his life in a fire that destroyed the city jail, in which he was confined on a charge of drunkenness. It was alleged that the jail was located a long distance from other houses where people lived; there were no means of communication with persons outside; there were no fire extinguishers, no fire protection, and no watchman; the building was of sound-proof and airtight construction with no openings for ventilation; was so constructed that an inmate could not reach an outer door; trash, papers, grease, oil, cigarette stubs, and other combustible material had accumulated in the jail for a...