City of Terrell v. Howard (85 S.W.2d 283, 1935)

JONES, Chief Justice.

In a suit in the' district court of Kaufman county, by appellee, James R. Howard, to recover damages against appellant, the city of Terrell, for personal injuries resulting from appellee’s falling into an unprotected ditch in North Francis street of said city, appellee recovered judgment and his damages were assessed at $3,500. The appeal has been duly perfected to this court, and the following are the facts:

Appellee was an employee of the Janelli Advertising Service, with offices in the city of Dallas. From such offices this company sent out crews in a truck, to towns and cities in the surrounding country, to distribute circulars advertising the business of its customers. The members of the crew would make a house-to-house canvass for the distribution of such circulars. On October 31, 1932, the crew to which appellee had been assigned, had gone out early Saturday morning, had worked a number of towns, arriving at Terrell about 8 p. m., and immediately began their work of distributing the advertising matter. Two of the crew would make the same street, one working each side. On the occasion in question, Joe Adair was appellee’s working partner, and after making two or three streets, they began at the north end of North Francis street, appellee taking the east pr left-hand side of the street, and Adair taking the west or right-hand side, going south toward appellant’s main business street. Ap-pellee and his working partner had never been in appellant city before, and were unacquainted with its streets and their condition. North Francis street is paved, the pavement being approximately SO feet wide from curb to curb, the street, however, being from 15 to 20 feet wider from property line to property line. There was, therefore, a rather wide space on each side of the street between the sidewalk and the curb line of the pavement. This portion of each side of the street is described as a parkway.

Heath street runs east and west and intersects North Francis street; it is a graded and graveled street. Elm street extends east and west and is one block north of Heath street. There is a natural waterway or branch that runs in a southeasterly direction through the northwest part of appellant city, and is used by appellant for drainage purposes. This waterway or ditch comes into North Francis street at the southwest corner of Elm and Francis streets, and for a block extends south on the west side of Francis street to the northwest corner of Heath and Francis, where it angles across Francis street to the southwest corner of Francis and Heath, then extends east. The paving on Francis street passes over the ditch, but where the paving ends on the east side of Francis, it is open, is approximately 5 feet deep and 10 feet wide, with perpendicular banks that are held in place by concrete walls. The night of October 31, 1932, is described as being very dark.

The ditch, after it emerges from under the Francis street paving, is in the direct path of one traveling south on the east side of Francis street as he crosses the intersection of Heath and Francis streets. There are two concrete posts, connected by two or three arms, to protect vehicles and persons traveling on the pavement on the east side of Francis street. There is no protection from the ditch of any kind for one crossing Heath street from the east side of Francis street, while proceeding south on the sidewalk on the east side of Francis street, except at such street corner the city has a street electric light. There is no improved sidewalk on the east side for two blocks of Francis street immediately adjacent to the ditch after it emerges from the pavement. This street light is constructed so that it can only be turned on and off at the light pole.

A Mr. Bennett conducts a filling station on the east side of Francis street, in the immediate vicinity of this ditch, and has been turning the light on in the evening and turning it off in the morning, but he has no employment or agreement with appellant to do such work, and only does it as a volunteer, perhaps to give himself the benefit of the light, as well as the traveling public.- When he attempted to turn on the light, on the evening of October 31, 1932, he discovered that it would not burn, but did not notify any of appellant’s employees that the light would not burn, and none of appellant’s employees knew that on the night in question the light was not burning.

As appellee proceeded with his work, on Francis street, crossing Heath- at the intersection, and in ignorance of the existence of the ditch, he fell into such ditch and received very painful and permanent injuries. His left thigh was broken about six inches from the hip, and the bone protruded through the flesh. He called to his working partner on the other side of the street, who came and helped him out of the ditch, and then with the aid of other help he was taken in an automobile to a hospital in appellant city. Later, he was moved to Baylor Hospital in Dallas, and then was sent to his home in the city of Dallas, where he remained in bed for about three weeks longer. The severity of the break was such that his left leg will be from three-fourths to one inch shorter than his right leg. At the time of the trial, which was in the latter part of July, 1933, he had to wear a brace over his left leg, and could not walk without the aid of a cane or crutch, and still suffered considerable pain.

The Janelli Advertising Service carried compensation insurance and appellee presented his claim before the Workmen’s Compensation Board, was awarded a weekly payment of $7 and had received of such payments a total of $105, when the compensation carrier became insolvent and went into the hands of a receiver. There was at the time the suit was filed, and at the time of trial, a contest between state and federal receivers as to which would administer the insolvent estate. The compensation carrier is not a party to this suit, but appellee prayed that the sum of $105, the amount he received, be deducted from such judgment and paid into the custody of the court for the benefit of the receiver who finally administers the estate, and this sum was deducted and is in the custody of the district court of Kaufman county for such purpose.

Notice of appellee’s claim, in conformity to a provision in appellant’s charter, was filed with the city secretary and chairman of appellant’s board of commissioners, on January 13, 1932, such notice being filed 74 days after appellee’s injuries. Subsequent to the filing of this notice, but within 90 days after the injuries, appellee’s counsel appeared in person before the commissioners and presented a written claim for damages because of his injuries, asking permission to file suit against appellant for damages. No action was taken on the notice of injuries filed January 13, 1932, and no action was taken on the petition presented to the commissioners in person. Appellee, soon after presenting the notice and petition to the commissioners, instituted this suit.

In October, 1913, appellant’s charter was amended so as to provide: “ * * * that no suit for damages for any injury to any person or property shall be brought against the City of Terrell without first obtaining the consent of the Commissioners, or a majority thereof, at a regular meeting to bring said suit. The consent to sue the City of Terrell shall not be granted, unless the party claiming the injury to his person or property shall notify the Chairman of the Commission in writing within 90 days after the injury or damage, of the time, place and circumstance of the injury; provided, however, that nothing in the following shall be construed to mean that the City shall not compensate sufficiently every person suffering injury to the person or property, but it is specially ordained to be the duty of the City Commission to carefully investigate every complaint and to do justice.”

Without any change in the above charter provision, there was subsequently enacted by the city commission an ordinance which declares that, “Before the City of Terrell shall be liable for damages of any kind the person injured, or someone in his behalf shall give the Chairman of the Commission or City Secretary notice in writing of such injury within thirty days after the same has been received, stating specifically in such notice when, where and how the injury occurred and the extent thereof. The City of Terrell shall never .be liable on account of any damage or injury to person or property arising from or occasioned by any defect in any public street, highway or grounds, or any public work of the City, unless the specific defect causing the damage or injury shall have been actually known to the Chairman of the Commission or City Engineer by personal inspection for a period of at least twenty-four hours prior to the occurrence of the injury or damage, unless the attention of the Chairman of the Commission or City Engineer shall have been called thereto by notice thereof in writing at least twenty-four hours prior to the occurrence of the injury or damage and proper diligence has not been used to rectify the defect after actually known or called to the attention of the Chairman of the Commission or the City Engineer, as aforesaid.”

Appellee’s first amended original petition, on-which the case was tried, pleaded the several grounds of negligence submitted by the court. Appellant filed four pleas in abatement to appellee’s cause of action, on the grounds, (1) that the 30-day notice provided by ordinance, as a condition precedent to the filing of the suit, wás not given; (2) that the Republic Indemnity Company carrying the workmen’s compensation insurance for the Janelli Advertising Service was a necessary party to the suit, for the reason that appellee had filed a claim with the Workmen’s Compensation Board against such company, and had received partial payment thereon; (3) that appellee had elected to proceed against the Republic Insurance Company, and had recovered against such company, as compensation insurance, the sum of $7 per week, and having elected to proceed against such insured, he had waived his rights against appellant; and (4) that by appellant’s charter provisions, no suit for damages shall be brought against appellant without first obtaining the consent of the commission to bring such suit, and ■ that no consent to bring such suit was ever obtained from appellant’s commission. In addition to these pleas, appellant filed an elaborate answer to the merits of appellee’s case, as made by his petition.

Each of the pleas in abatement was presented to the court and overruled, appellant reserving its exception to the ruling of the court, and has duly assigned error on the court’s action in respect to each of said pleas.

The case was tried to a jury, submitted on special issues, and such issues with the jury’s verdict thereon are:

“Question No. 1: Do you find from a preponderance of the evidence that the plaintiff, James R. Howard, sustained personal injuries on or about the 31st day of October, A. D. 1932, by reason of falling at the time and place alleged by plaintiff? Answer ‘yes’ or ‘no.’ We, the jury, answer ‘yes.’

“Question No. 2: If you have answered the last preceding question ‘yes,’ you will answer this question; but if you have answered ‘no,’ then you need not answer this question: Do you find from a preponderance of the evidence that the place into which the defendant fell, if he did, and sustained injuries, if he did, was a part of a natural waterway, creek or branch running through the City of Terrell, at the time plaintiff fell, if he did, and sustained injuries, if he did? Answer ‘yes’ or ‘no.’ We, the jury, answer ‘yes.’

“Question No. 3: Do you find from a preponderance of the evidence that the place into which the plaintiff fell, if he did, was constructed by the defendant, City of Terrell, and allowed by the defendant to remain open as a ditch or pit in the City of Terrell. Answer ‘yes’ or ‘no.’ We, the jury, answer ‘yes.’

“Question No. 4: Do you find from a preponderance of the evidence that the place into which the plaintiff fell, if he did, and sustained injuries, if he did, was situated in a public street of the City of Terrell, to-wit: North Francis Street? Answer ‘yes’ or ‘no.’ We, the jury, answer ‘yes.’

“Question No. S: If you have answered the last preceding question ‘yes,’ then answer this question; but if you have answered ‘no,’ then you need not answer this question: Do you find from a preponderance of the evidence that the construction of, or the leaving open the place into which plaintiff fell, if he did, and received his injuries, if any, was negligence? Answer ‘yes’ or ‘no.’ We, the jury, answer ‘yes.’

“Question No. 6: If you have answered the last preceding question ‘yes,’ then answer this question; but if you have answered ‘no,’ then you need not answer this question: Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of the injury, if any, sustained by the plaintiff, James R. Howard, at the time and on the occasion in question? Answer ‘yes’ or ‘no.’ We, the jury, answer ‘yes.’

“Question No. 7: Did the defendant, its agents, servants and employes, on the night of October 31, 1932, fail to place and maintain barriers, guards, or rails at the place into which plaintiff fell, if he did? Answer ‘yes’ or ‘no.’ We, the jury, answer ‘yes.’

“Question No. 8: If you have answered the last preceding question ‘yes’ then answer this question; but if you have answered ‘no,’ then you need not answer this question: Did such failure (if any) to place barriers, guards or rails at the place into which the plaintiff fell, if he did, constitute negligence on the part of the defendant, according to the definition of negligence given you in this chargé? Answer ‘yes’ or ‘no.’ We, the jury, answer ‘yes.’

“Question No. 9: If you have answered the last preceding question ‘yes’ then answer this question; but if you have answered ‘no,’ then 'you need not answer this question: Was such negligence (if any there was), the proximate cause (as that term has been defined to you), of the injuries, if any, sustained by plaintiff to his person? Answer ‘yes’ or ‘no.’ We, the jury, answer ‘yes.’

“Question No. 10: Did the defendant, on the night of October 31st, 1932, at or near the place into which the plaintiff fell, if he did, fail to have a street light burning? Answer ‘yes’ or