Ynsfran v. Burkhart

• Citation: 247 S.W.2d 907
• Decision Date: 26 March 1952
• Docket Number: No. 10026,10026
• Parties: YNSFRAN et ux. v. BURKHART.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 907

247 S.W.2d 907

YNSFRAN et ux. v. BURKHART.

No. 10026.

Court of Civil Appeals of Texas, Austin.

March 26, 1952.

Rehearing Denied April 16, 1952.

McKay & Avery, Charles N. Avery, Jr., and John J. McKay, all of Austin, for appellant.

Looney, Clark & Moorhead and Donald S. Thomas, all of Austin, for Henry C. Burkhart.

W. T. Williams, Jr., W. J. Hodge, Clifton Speir and Robert L. Burns, all of Austin, for City of Austin.

ARCHER, Chief Justice.

This is an appeal from an adverse judgment of the 53rd Judicial District Court of Travis County growing out of an automobile collision at an intersection in the City of Austin between an automobile driven by plaintiff, Henry C. Burkhart, in which Mrs. Annie Burkhart was an occupant, and one driven by Mrs. Carmen G. Ynsfran, wife of P. M. Ynsfran, defendants, for damages to himself and his wife. Service Fire Insurance Company sued in Burkhart's name on its subrogation. The defendants, appellants herein, as cross plaintiffs, impleaded the City of Sustin, asking indemnity or contribution upon the grounds that the city was maintaining a dangerous nuisance and was negligent in several respects as concerns conditions at the intersection. The plaintiff, appellee herein, did not seek any relief against the City.

Special exceptions of the City to the cross action of appellants to the effect that the cross action failed to state a cause of action were sustained by the trial court, and the City was dismissed from the suit.

A trial was had with the aid of a jury of the original action, and based on the jury's verdict a judgment was entered in favor of plaintiff and intervenor, Service Fire Insurance Company, for damages.

The appeal is founded on thirty-one points assigned as error, and Nos. 1 to 10, inclusive, are directed to the action of the court in sustaining the City's special exceptions to appellants' amended petition in cross action, thereby holding that the City could not be held liable for personal injuries in indemnity or contribution unless the notice provision of Article XI, Section 26, of the Charter of the City of Austin had been complied with, and that the City was not negligent in maintaining the streets in a reasonably safe condition, and in dismissing the cross action of appellants as against the cross defendant, City of Austin.

This suit was instituted by Henry C. Burkhart alleging that he was driving north on Red River Street, and that Mrs. Ynsfran was traveling east on East Thirty-Second Street; that she failed to keep a proper lookout, failed to yield the right of way, ran a stop sign and collided with him, causing the injuries complained of, and sought damages against appellants. The appellants in their Second Amended Petition in cross action against the City alleged that the City had full power and control over its streets, right of ways between property and curb lines, and over its traffic signs, location and utility poles, and maintenance of all such areas.

Appellants alleged the City's exclusive control and power to abate and remove obstructions in these areas; and further alleged that the City had prohibited plantings of greater height than three feet and limbs on trees lower than eight feet above the street level, and providing for fines and for removal of such obstructions. It was further alleged that Red River Street runs north and south, with a width of 60 feet, but was curbed to a width of 36 feet, leaving strips on each side; that East Thirty-Second Street runs east and west and is curbed to a width of 30 feet, leaving an area 15 feet wide on the south side. Allegations were made that at the southwest corner of the intersection of the streets that the City maintained a dangerous and hazardous condition, both on the traveled area and in such close proximity to constitute hazards to the traveling public, consisting of trees, brush, weeds, etc., and a telephone pole obstructing the view of persons traveling in this area.

Further allegations were made that Mrs. Ynsfran was not familiar with the area, was proceeding east on East Thirty-Second Street to the street intersection; that she proceeded in a careful manner, maintaining a proper lookout, close to the right-hand curb, and had reached a point where the entire area along the curb was grown up in large trees, bushes, etc. for a distance of 100-150 yards, overgrowing the entire area of the street between the curb line and the property lines at great heights, with tall limbs hanging as low as four feet above the ground, and bushes, etc. growing up to heights of 5 to 10 feet. That the intersection was obscured and visibility was obscured, and that Mrs. Ynsfran did not know, and in the exercise of ordinary care could not know that she was approaching a street intersection, which dangerous condition was permitted to exist by the City.

Defendants further plead that Mrs. Ynsfran did not know there was a stop sign on the southwest corner facing west on East Thirty-Second Street; that there was a large pole in front of the sign, and by reason of which and because of the trees and bushes the sign was not visible. Pleadings were made that when Mrs. Ynsfran reached a point about even with the stop sign she saw it and realized she was entering an intersection, applied her brakes, but, without negligence on her part, collided with the car driven by Plaintiff.

Actual and constructive notice by the City of the dangerous condition was alleged and that the condition was a nuisance, dangerous, suffered by the City to exist for some time prior to the collision; that the City had full power to remove the obstructions and such was not done; that the nuisance was not abated and that the said condition of the street intersection was the sole proximate cause of the collision and that the City was liable therefor.

The appellants allege that Article XVI, Section 26 of the Charter, did not apply to the cross action and that they were under no obligation to give notice as required, because their rights against the City were not in the nature of claims on their part for personal injuries and that under Article 2212, Vernon's Ann.Civ.St., the City is impliedly obligated to reimburse them in indemnity and contribution. Other allegations were made that it was impossible for defendants to give the notice within thirty days of the date of the accident because they had no notice from the plaintiff within that time as to the nature, extent and kind of injuries alleged to have been suffered by plaintiffs, and that not until December 11, 1950, were they so advised; that they did give such notice within thirty days of the date it was first possible for them to give such notice.

The City by its pleading urged its special exceptions, and the court having sustained them and the cross plaintiffs declining to further amend, the court dismissed the cross action.

The special exceptions presented by the City were that the cross action attempted to state a cause of action in favor of the griginal plaintiffs, but fails to allege that Burkhart or anyone for him gave the notice prescribed by the Charter, and that such was an essential element of any cause of action against the City. That insofar as the cross action attempts to allege a breach of common law duty to maintain the streets in a reasonably safe condition, there was a failure to allege a breach of duty to persons traveling on the streets, or any defect or obstruction in the improved portion of the street, or not maintained in a reasonably safe condition for travel by ordinary prudent drivers; that there was no duty on the City to remove trees and vegetation from areas between curb and lot lines, and that the pleadings do no more than to complain of the negligence of the City and its agents in the performance of governmental and police functions, for which the City is not liable. Further, the exceptions were directed to other portion of the defendants' cross action and that there is no duty imposed on the City for which it can be held liable.

The City has made seven counterpoints to the effect that the court correctly sustained the special exceptions, in the absence of any allegation that notice had been given the City of the personal injuries of the appellees, Burkharts, as required by the Charter; that there was no common burden between appellants and the City so as to create a right to indemnity; that no cause of action was alleged against the City as to negligence in maintaining the streets in a reasonably safe condition; the ordinance concerning the placing of plants higher than 3 feet above the level of the street, and other restrictions as to location and height of lower limbs of trees from the street level and the enforcement thereof, is a police ordinance and a governmental function; that the allegations concerning the failure to remove a telephone pole and natural vegetation obscuring the stop sign from view did not state a cause of action against the City; that the allegations that in permitting natural vegetation to grow on the unimproved portion of the street, the City had permitted a dangerous condition and a nuisance, did not state a cause of action against the City, because it was not shown that the City had created a nuisance; that the allegation that Mrs. Ynsfran was not familiar with the street intersection and did not know of the stop sign and entered the street on the date of the collision in question, did not state a cause of action against the City, and the collision was the result of the act of either the appellants or the appellee, or of both, in entering the intersection which was the proximate cause of the injuries to appellee.

We do not believe the pleadings in the defendants' cross action stated a cause of action against the City for which it could be held liable as to negligence in maintaining the streets involved in a reasonably safe condition for travel by an ordinarily observant person.

The complaint of negligence on the part...