Patterson v. City of Austin

• Decision Date: 20 January 1897
• Citation: 39 S.W. 976
• Parties: PATTERSON v. CITY OF AUSTIN.
• Court: Texas Court of Appeals

39 S.W. 976

PATTERSON v. CITY OF AUSTIN.

Court of Civil Appeals of Texas.

January 20, 1897.

Appeal from district court, Travis county; F. G. Morris, Judge.

Action by George W. Patterson against the city of Austin to recover for personal injuries. From a judgment for defendant, plaintiff appeals. Reversed.

Osceola Archer, for appellant.

KEY, J.

On the 13th day of June, 1892, appellant was traveling in a one-horse buggy along a public street in the city of Austin, when the horse took fright at a pile of stones, partially obscured by weeds, lying in the street, but outside of the improved and traveled portion thereof, and ran the buggy against a parapet wall of a bridge, and threw appellant out of the buggy and into a creek, thereby causing him certain physical injuries; and he has sued the city to recover damages. The case was tried before the court without a jury, and judgment rendered for the city. The plaintiff's petition charged the city with negligence — First, in the construction of and failure to repair the bridge; and, second, in allowing the pile of stones to remain in the street. The trial court filed conclusions of fact and law, holding (1) that the plaintiff was exercising due care, and driving a gentle horse; (2) that the city was not negligent concerning the bridge; (3) that if there was negligence in that respect, the plaintiff was guilty of contributory negligence in attempting to cross the bridge, knowing its defective condition; and (4) that the city was not guilty of negligence as to the pile of stones. The correctness of these holdings is challenged by appellant, and, in view of the evidence in the record, it seems to us that the last finding is not only against the great preponderance of the testimony, but is contrary to about all the evidence bearing on that question. Six witnesses testified to seeing other horses besides appellant's become frightened at the pile of stones, and two of them (Mrs. Shepard and Mr. Rumsey) said they saw a great many horses take fright at the stones, and Mrs. Shepard stated that she knew of no horse passing there that did not scare at them. Rumsey and Mrs. Shepard lived near the place where the accident happened, and had ample opportunities for observing horses that passed the pile of stones. The stones had been placed in the street under the authority of the city for the purpose of enlarging and improving the bridge, and had been there ten days or two weeks. The city engineer and the city street commissioner had actual knowledge that the stones were there at the time of and before the accident. In fact, the testimony shows that the latter's horse frequently took fright at the stones. After the accident, the street commissioner removed the stones by rolling them down the hill out of sight, and it seems they remained there until they were used in enlarging the bridge. The defendant offered no evidence tending to contradict the testimony of the six witnesses for the plaintiff to the effect that quite a number of horses had taken fright at the pile of stones, and did not attempt to show that any horse that passed them had not become frightened at them.

The court below was of the opinion that the evidence would not justify a finding that the pile of stones was naturally calculated to frighten horses of ordinary gentleness, and that, if calculated to have that effect, inasmuch as it was the city's right and duty to keep the bridge in proper repair, and as the stones were necessary for that purpose, it was not guilty of negligence in allowing them to remain where they were. We are unable to concur in either of these views. The uncontroverted testimony of six disinterested witnesses concerning the effect the pile of stones had on other horses indicates with reasonable, if not absolute, certainty that they were naturally calculated to frighten...