Schawe v. Leyendecker

• Decision Date: 27 January 1925
• Docket Number: (No. 6838.)
• Citation: 269 S.W. 864
• Parties: SCHAWE v. LEYENDECKER.
• Court: Texas Court of Appeals

269 S.W. 864

SCHAWE v. LEYENDECKER.

(No. 6838.)

Court of Civil Appeals of Texas. Austin.

January 27, 1925.

Error from District Court, Caldwell County; M. C. Jeffreys, Judge.

Action by H. H. Schawe against Robert Leyendecker. Judgment for defendant, and plaintiff brings error. Affirmed.

Barrett & Barrett, of San Antonio, for plaintiff in error.

Hart, Patterson & Hart, of Austin, for defendant in error.

BLAIR, J.

Plaintiff in error, H. H. Schawe, hereinafter designated appellant, sued Robert Leyendecker, defendant in error, hereinafter designated appellee, for $1,400 as damages to appellant's automobile, alleged to have been sustained while he was driving it along Bois d'Arc street within the city limits of the city of Lockhart, Tex., across which street appellee had dug a ditch for the purpose of laying a sewer pipe for the Lockhart Sanitarium.

The specific allegation of negligence on the part of appellee was that he had dug the ditch across the street and had piled the dirt from said ditch along its side, and had failed to place any signal, sign, barrier, or light barricade, or any person to give warning to appellant of the existence of said ditch, and further pleaded that such failure was in violation of article 1 of the sewer ordinance of the city of Lockhart, which requires persons digging sewer ditches to do so in such manner as to avoid damage to public or private property, and that such ditches "must not remain open longer than actually necessary to do the work, and shall be properly protected by light barricades while open."

It was further alleged that in attempting to avoid running into the ditch thus constructed, appellant ran into the edge of a metal culvert, breaking a rear wheel and causing the turning over of his car, which resulted in the specific damages sued for.

Appellee denied generally and specially, and further defended that the damages to appellant's car were the direct and proximate result of his own negligence, in that the dirt taken from the ditch was piled along the sides thereof entirely across the street, and was about 4 feet high, which appellant could have seen some 300 or 400 yards before he reached it, and charged appellant with negligence in failing to observe such barricade, and further that appellant was driving his automobile at an unlawful and excessive rate of speed at the time of the accident.

The cause was tried to a jury, and at the conclusion of the testimony the trial court instructed a verdict for appellee. This appeal is from the judgment of the trial court, based upon the instructed verdict.

Appellant first contends that the evidence raised the question that appellee's failure to properly place signs, signals, etc., at the place where the ditch was constructed was the proximate cause of the accident, at least to the extent that reasonable minds might differ thereon, and therefore the question was one for the jury to decide. We do not sustain this contention. Appellant cites Hutchens v. Ry. Co., 40 Tex. Civ. App. 245, 89 S. W. 25, which holds:

"In order to authorize the court to withdraw the case from the jury, the evidence must be of such a character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it."

See, also, Lee v. Ry. Co., 89 Tex. 588, 36 S. W. 63; Johnston v. Drought (Tex. Civ. App.) 22 S. W. 290; Phœnix Land Co. v. Exall (Tex. Civ. App.) 159 S. W. 474; Ry. Co. v. Gaddis (Tex. Com. App.) 208 S. W. 895; Ferrell v. Traction Co. (Tex. Com. App.) 235 S. W. 531.

This, of course, is a well-settled rule of law, and we think that we but correctly apply it to the evidence in this case. The secretary of the city of Lockhart testified that he issued a permit to appellee to make the excavation across the street for the purpose of laying the sewer pipe. Appellant pleads, and the evidence is uncontradicted, that the ditch was dug across the street about 2 feet wide and 4 feet deep, and that the dirt taken therefrom was piled entirely across the street, along the side of the ditch from which appellant was approaching, and that this dirt formed a barrier or pile from 3 to 4 feet high, and extended entirely across the traveled portion of the street. It is further shown that an improvised passage was made through the sanitarium lot at the point where the ditch was being constructed. It is further undisputed that this embankment of dirt could be seen from the direction in which the plaintiff was approaching the ditch from between 300 to 400 yards. Plaintiff testified that when he approached the ditch he could see the embankment of dirt piled across the street, and that the embankment was of black dirt, and that it was about 3 feet high, and that the dirt was thrown between him and the ditch; he stated:

"I do not know whether I could have seen that black dirt embankment 600 yards down the road, but I could see it a pretty good ways."

He also testified:

"I judge that the dump was about 3 feet high. I guess if I had been looking for the embankment I could have seen it for some distance. I did not keep my eyes right straight on the road; I do not believe anybody does that. I looked off on the side, and looked right back again. I looked over at the hospital, and I saw two or three young ladies on the porch. I did not know the young ladies; I was not watching the girls on the porch. As to whether that road was practically straight where the dump was, that was around a little curve; the road had already made a curve over to where the dump was. I really do not know how far I could have seen that dump before I got to it; I did not go back to look, I do not know. I did not run up against the dump. I do not believe I turned out of the road 60 or 70 feet before I got to the dump; I do not believe it was that far; but it was about 30 or 35 feet to the dump when I started to turn out of the road."

All of the other witnesses, some of whom made actual tests on the evening of the accident, testified that the embankment of dirt thrown across the road could have been seen from 300 to 400 yards down the street from the way appellant approached. The testimony is undisputed that the accident happened between 1 and 3 o'clock in the daytime.

The city ordinance, which appellant claims appellee violated, provided that in making excavations for sewer pipes the excavation should be protected by "light barricades while open." "Barricade" in its usual accepted sense is an obstruction or block for the purpose of rendering passage impossible. Whether the adjective "light" as used in the city ordinance is descriptive of the weight or construction of the barricade rather than that it should be illuminated we find unnecessary to determine here. The city ordinance made no provision as to the kind or character of barricade other than that it be a light barricade. We think that, where the construction itself furnishes a sign, signal, or barricade of such nature that it could have been seen 300 or 400 yards, if one should have looked, giving warning that the street was impassible, it would be just as effective as a "light barricade" constructed of any other material, or illuminated, especially in the daytime, and that this testimony, including the admission of appellant that a barricade or embankment of dirt about 3 feet high extended entirely across the street between him and the ditch, which could have been seen a "pretty good ways," fails to establish the allegation that appellee had negligently failed to place a barrier or anything to indicate that the road was not passable, and that a ditch existed in the road. In other words, we think that there is no such conflict in the testimony and no possibility for any disagreement on the part of men of reasonable minds that the failure of defendant to construct or place at the ditch any other kind of barrier other than the 3 or 4 feet of dirt piled entirely across the road, which could be seen 300 or 400 yards, was the proximate cause of appellant's injuries.

Appellant contends in the second place that the court erred in instructing the jury for appellee, because the appellant was not guilty of negligence per se in driving his automobile at a rate of speed in violation of the laws of this state at the time of the injury. The uncontradicted testimony of appellant was that he was traveling between 30 and 35 miles per hour. He said that: "I do not believe it was over 30 miles an hour, and I know it was not over 35." All other witnesses testified that he was traveling over 50 miles per hour at the time of the accident. The accident occurred on August 3, 1922. At this time the law of Texas relating to the rate of speed at which one could lawfully operate an automobile upon public highways, or upon the streets within an incorporated town or city,...