Webb v. City of Lubbock
| Decision Date | 04 May 1964 |
| Docket Number | No. 7352,7352 |
| Citation | 380 S.W.2d 135 |
| Parties | C. E. WEBB et ux., Appellants, v. CITY OF LUBBOCK, Appellee. |
| Court | Texas Court of Appeals |
Splawn & Maner, Lubbock, for appellants.
Fred O. Senter, Jr., City Atty., Minor Pounds, D. Paul Stafford and William J. McGinnis, Asst. City Attys., Lubbock, for appellee.
This suit was brought by C. E. Webb, individually and on behalf of his wife, Julia A. Webb, against the City of Lubbock to recover damages for personal injuries alleged to have been sustained by Mrs. Webb as a result of stepping into a water meter box. The case was submitted to a jury on special isues, and based upon the answers of the jury, the trial court entered judgment in favor of the City and denied plaintiffs any recovery. Plaintiffs have perfected this appeal.
The City of Lubbock owned and operated its water system. In operating and maintaining the water system, water meters were placed in the alleys adjacent to the customers' property. In the early evening of August 4, 1962, Mrs. Webb, while walking in the alley at the rear of their property, stepped into the water meter hole resulting in her alleged injuries. In the original petition the plaintiffs alleged eight acts of negligence on the part of the City: In failing to replace the lid of the water meter; of carelessly replacing the lid; in failing to secure the lid in proper place; of failing to properly replace the lid; of creating an illusion for persons, more particularly Mrs. Webb, passing at the site of the meter; failing to warn Mrs. Webb of the dangerous condition; of creating a dangerous condition by misproperly replacing the lid; and failing to exercise that degree of care which would have been exercised by reasonable and prudent persons under the same or similar circumstances. By trial amendment plaintiffs alleged the City was negligent in failing to have a lock type meter lid on the water meters, and in failing to have the meter lid locked prior to and at the time in question. The trial court submitted to the jury the issues: Was the defendant city guilty of negligence in creating a dangerous condition by improperly placing the water meter lid; and did the city fail to make a proper inspection of the premises where the water meter was located prior to the time in question. These two issues, along with other issues concerning alleged acts of negligence on the part of Mrs. Webb, were answered in the negative.
Plaintiffs contend the trial court erred in refusing to submit their requested issues based on the allegation in their trial amendment, to-wit: Whether the meter lid in question was not locked prior to and at the time in question; and whether the defendant city did not have a lock type lid on the meter box in question. Despite the well-settled general rule that a party is entitled to have material fact issues submitted to a jury if they are supported by the pleadings and evidence, there are exceptions to such rule. In order to constitute actionable negligence it is necessary that the action or omission complained of must be wrongful in the sense such action or omission involves the breach of some legal duty which the alleged wrongdoer owes to the injured party at the time the injury was inflicted. Westbrook v. Watts, (Tex.Civ.App.), 268 S.W.2d 694, (Refused, NRE); City of Wichita Falls v. Swartz, (Tex.Civ.App.), 57 S.W.2d 236; 40n Tex.Jur.2d, Negligence, Section 6, Page 448, and authorities there cited. Whether or not a legal duty does exist under a given state of facts and circumstances is essentially a question of law to be determined by the court. City of Austin v. Schmedes, (Tex.Civ.App.), 270 S.W.2d 442, (Refused on other grounds, see 156 Tex. 416, 279 S.W.2d 326, 52 A.L.R.2d 680); City of Bryan v. Jenkins, (Tex.Civ.App.), 247 S.W.2d 925, (Refused, NRE). By rejecting appellants' requested issues the trial court...
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