Sinko v. City of San Antonio, 04-84-00387-CV

• Decision Date: 30 September 1985
• Docket Number: No. 04-84-00387-CV,04-84-00387-CV
• Citation: 702 S.W.2d 201
• Parties: Abigail SINKO, Appellant, v. The CITY OF SAN ANTONIO, et al., Appellees.
• Court: Texas Court of Appeals

Page 201

702 S.W.2d 201

Abigail SINKO, Appellant, v. The CITY OF SAN ANTONIO, et al., Appellees.

No. 04-84-00387-CV.

Court of Appeals of Texas San Antonio.

Sept. 30, 1985.

Rehearing Denied Nov. 12, 1985.

Dennis Reese, Charles Herring, Jr., Small, Craig & Werkenthin, Austin, for appellant.

Robert R. Biechlin, Jr., William Nichols, San Antonio, for appellees.

Before CANTU, REEVES and COLEMAN, ^* JJ.

OPINION

COLEMAN, Justice (Assigned).

This is an appeal from a take nothing judgment rendered in a suit for damages caused by personal injuries. The case was tried to a jury which found that neither of the defendants were guilty of negligence which was a proximate cause of the occurrence in question. The two principal issues presented by this appeal are (1) the trial court's refusal to permit in evidence certain demonstrative evidence; (2) the asserted refusal of the trial court to submit certain special issues relating to the plaintiff's asserted cause of action as a third party beneficiary of a contract between the City of San Antonio and William D. Massey & Sons, Inc. The judgment will be affirmed.

Abigail Sinko, the plaintiff, was employed by a corporation of which she was a principal owner. On October 15, 1979, she drove to work in a van and parked it near the building where her business was conducted. The passenger side of the van was near an excavation made by the defendant, William D. Massey & Sons, Inc. pursuant to a construction contract with the City of San Antonio Water Works Board. Mrs. Sinko walked around to the passenger side of the van to place a thermos inside the van. She testified that, after closing the door, she was standing about two feet from the excavation facing the van when she felt the "dirt go," and she fell backwards into the hole. Mrs. Sinko sustained serious injuries requiring the surgical implant of a steel support in her leg. She brought suit for the damages resulting from her injuries naming as defendants the City of San Antonio, Water Board of Trustees of the City of San Antonio, John H. Schaefer, Jose San Martin, Jr., Richard R. Solis, Robert L.N. Hillard, Lila Cockrill, William D. Massey & Sons, Inc., William D. Massey, individually, and d/b/a William D. Massey & Sons. The Massey Corporation, The Company, and Mr. Massey individually, will be referred to in this opinion as "Massey."

Massey contracted with the City Water Works Board to install water mains on Polk and Josephine Streets in the City of San Antonio. The work began on Josephine Street, which ran in front of the plaintiff's business, and then continued down Polk. A trench was dug, pipe laid, and the trench covered in a continued sequence.

About a week after the work completed, Massey came back and dug a hole in the parking area approximately two feet by three feet wide and three and one-half feet deep in order to put a tap on the new main. The parking area was on the plaintiff's property between the side of their building and Polk Street. This excavation remained open for about one week before Mrs. Sinko had her accident. During this time barricades were maintained on the sides of the hole next to Polk and Josephine Streets and the dirt excavated was piled on a third side of the hole. There was no barricade on the side of the hole next to the parked van.

The jury failed to find that Massey was negligent in failing to cover or fence excavation, or negligent in the manner of barricading or warning the plaintiff concerning the excavation. It found that the City Water Board was negligent in its supervision of the contractor, but that this was not a proximate cause of the occurrence. Mrs Sinko was found negligent in failing to heed the barricades and keep a lookout for her own safety, and that these failures were proximate causes of the occurrence.

The plaintiff contends that the trial court erred in refusing to admit into evidence a portion of plaintiff's Exhibit No. 202, a video tape depicting what the plaintiff contends would be a proper barricade, one that would have physically impeded a fall into the excavation.

The plaintiff called two expert witnesses to testify to the proper safety precautions to be taken around excavations, Mr. Stocker and Mr. Stevens. They testified that recognized safety practices with respect to hazards consisted first of eliminating the hazard if possible, and if not, guarding against the hazard and warning of the hazard. They testified as to what they considered to be the proper precautions to be taken to guard against the hazards associated with an excavation. They considered the danger of an excavation caving in a hidden or unknown hazard to the general public.

These experts testified that the barricades used by the defendants did not comply with industry standards, and were not reasonably adequate because they did not warn of the hidden hazards of a cave-in, and did not completely enclose the excavation. There was evidence of numerous texts and manuals that set out standards in the industry supporting the experts' testimony concerning the danger of cave-ins and the importance of guarding excavations with barricades, fencing and guardrails.

Stevens identified pictures of numerous other excavation sites throughout the City of San Antonio that reflected proper methods of guarding, including the use of barricades to completely encircle the excavation. He testified that the concept of barricading included not only warning, but actually preventing or impeding physical access.

He gave as an example of proper guarding the use of four twelve-foot long barricades that completely encircle the excavation and were set outside the zone of danger from cave-in. This arrangement of barricades was made at the accident site and was depicted on the first portion of plaintiff's Exhibit No. 202, a video tape. Stevens gave his opinion that adequate guarding would have prevented a person from stepping in the hole.

However, Michael Massey and William D. Massey testified that while the encircling of an excavation by barricades tied together was a proper and adequate barricading system, such an arrangement would not have made the hole any safer because it would not physically prevent a person from falling in the hole.

The portion of the exhibit which was excluded from evidence depicted a person running against the barricade constructed by plaintiff and showed that this person did not stumble or fall into the hole. This experiment was conducted out of court and without the presence of the defendants' counsel.

In order to render admissible the evidence of an experiment made out of court and without the presence of the opposing party, it is generally required that there be a substantial similarity between the conditions existing at the time of the experiment and those surrounding the event giving rise to the litigation. Ford Motor Co. v. Nowak, 638 S.W.2d 582 (Tex.App.--Corpus Christi 1982, writ ref'd n.r.e.).

The video tape did not purport to be a reenactment of the accident or to accurately portray the scene of the accident. It simply portrayed a scene arranged to support the testimonial contention which the plaintiff sought to advance. While we have found no Texas cases on point, it is stated in 29 Am.Jur.2d Evidence, § 794 (1967):

[U]nless rigid necessity therefor is shown, the courts should not permit posed pictures which simply portray a scene arranged to support the testimonial contention which the profferer seeks to advance.

Id., at 874-75. In addition to the authorities cited in support of the proposition in the paragraph cited, additional more recent authorities are cited in an Annot. 19 A.L.R.2d 879, § 2 (1951) and A.L.R.2d, Later Case Service 19-21, pp. 107-112.

The article on evidence found in 29 Am.Jur.2d Evidence § 769 (1967) states:

A certain amount of discretion as to the receipt in evidence of real or demonstrative evidence must rest in the trial court, and the court must be alert to eliminate any abuse of the principles of real or demonstrative evidence where such evidence would give an unnecessary dramatic effect or would unduly emphasize some issues at the expense of others.

Id., at 838.

The proffered video tape was cumulative of evidence which was fully developed by the testimony of various witnesses produced at the trial. The exclusion of such testimony is not error. Bobbie Brooks, Inc. v. Goldstein, 567 S.W.2d 902 (Tex.Civ.App.--Eastland 1978, writ ref'd n.r.e.).

Finally the appellant has failed to carry her burden under TEX.R.CIV.P. 434, of showing that the exclusion of this evidence was calculated to cause and probably did cause the rendition of an improper verdict. When the exclusion of evidence is the basis for a point of error, the reversal of the trial court's judgment is not justified unless an examination of the record as a whole leads to the conviction that the error in refusing to admit the testimony was calculated to cause and probably did cause the rendition of an improper judgment. Guidry v. Harris County Medical Society, 618 S.W.2d 844, (Tex.Civ.App.--Houston [1st Dist.] 1981, no writ); Crawford v. Haywood, 392 S.W.2d 387 (Tex.Civ.App.--Corpus Christi 1965, no writ). The trial court did not err in excluding this evidence.

Mrs. Sinko plead that she was a third party beneficiary of a contract in existence between the defendant William D. Massey and the City Water Works Board of Trustees of the City of San Antonio. The contract required that the contractor protect the public by (1) taking reasonable precautions to guard persons from bodily injury; (2) that, where any dangerous condition exists in and around construction sites, the contractor should provide and maintain reasonable warning of such danger; (3) that in the event the contractor created excavations in connection with the performance of the contract, he should provide and maintain at all times reasonable means of warnings of any such danger; (4) that the contractor comply with the latest...