Klein v. City of Dallas

1. Liability of City for Dangerous Streets, Etc.— When a city has a charter with defined powers, the law imposes the duty of faithfully exercising them; and it gives an action to any person injured by a negligent failure of such duty. (Galveston v. Posnainsky, 62 Texas, 118.) 2. Same—Dallas.—By the charter.of the city of Dallas, the city was given control of its streets, sidewalks, sewers, etc. Its ordinances recognized Pacific avenue as a street. A sidewalk about six feet wide on this street is separated from the street by a ditch from three and a half to four feet deep, with perpendicular bank next the sidewalk. Oh a night in December, about eight or nine o’clock, plaintiff, passing along the. sidewalk in the dark, fell into the ditch and broke his leg. In suit for damages, held: (1) Error to instruct the jury to return a verdict for defendant unless they found from the testimony that the defendant had constructed the sidewalk and ditch. (2) If the sidewalks, by whomsoever constructed, became dangerous to the traveling public, the corporation was bound, to repair them. (3) A neglect to repair after notice of the defect would be a cause of liability in favor of one injured thereby. (4) By notice is meant actual or constructive. The latter exists if the corporation, by the exercise of ordinary diligence, could have discovered the defect in time to have made the necessary repairs before the injury, and, is inferred by the circumstances by the jury. 3. Same—Notice.—If a city constructs a sidewalk in which are visible defects, no further notice is needed. 4. Same.—The mere existence of a dangerous sidewalk would not raise the presumption that it was known to the city authorities. The city would not be liable for the act of a wrong doer rendering the street or sidewalk dangerous until notice be brought home to the city authorities of such condition.

Appeal from Dallas. Tried below before the Hon. George N. Aldridge. Appellant sued appellee for five thousand dollars for personal injuries received from a fall into a sewer or ditch bordering on the sidewalk, on Pacific avenue, near the junction of Sycamore street and Bryan street, in the corporate limits of the city, caused by appellee’s negligently constructing, or causing to be negligently .constructed, said sidewalk and ditch. Petition also alleges that the sidewalk is only three feet wide, had no guard or rail, the street was not lighted, the ditch was not covered, and the sidewalk and ditch were dangerous, imperfect and defective. The injuries are alleged to have occurred while plaintiff was walking along the sidewalk at night. He fell into the ditch, broke his leg and bruised his chin. The city answered by demurrer and general denial. Plaintiff proved that the ditch was between the sidewalk and the street; that it was from three to four and a half feet deep; that the sidewalk was of gravel and about six feet wide; the ditch had perpendicular side next the sidewalk—no guard or rail to prevent passers from falling. The railroad kept an old oil lamp about fifty feet from the intersection of Sycamore, street and the avenue, on the opposite sidewalk, but on the night of the accident this light was not burning, and that there was no other light near the place. The Bottom of the ditch was of some hard substance—wood or stone. Plaintiff swears he was not acquainted with the streets. On eight or nine o’clock at night, December, 1883, plaintiff was passing along Pacific avenue; there being no light, he fell into the ditch and broke his leg below the knee and bruised his chin. Other persons had fallen into the same ditch. The avenue in question is one of the most frequented streets in Dallas. One of the witnesses testified the ditch was a perfect “man trap.” Since plaintiff’s injury the ditch has been filled up somewhat, so that at the trial it was not as deep as when plaintiff fell into it. The charter of the city gives it exclusive control and power of the streets and alleys, public grounds and highways; right to abate and remove obstructions thereon; to open, alter, clean and improve streets; to put up drains or sewers and to prevent the encumbering thereof, and to protect the same from any encroachment or injury, and to regulate and alter the grade of premises and to require the filling up and raising of the same; also to establish, erect and construct, regulate and keep in repair bridges, culverts, sewers, sidewalks and crossways, and to regulate the construction and use of the same; to abate and punish for any obstructions or encroachments thereon; and the-cost of construction of sidewalks shall be defrayed by the owner of the lot or part of lot or block on which it fronts, together with the cost of collection, in such manner as the city council may by ordinance provide; and a sale of any lot or part of lot or block to enforce collections of costs of sidewalks shall convey a good title to the purchaser; and the balance of proceeds of sale, after paying the amount due the city and costs of sale, shall be paid by the city to the owner. Also to provide for lighting the streets and erecting lamp posts and lamps therein, and regulate the lighting thereof; and from time to-time create, alter or extend lamp districts; to exclusively regulate, direct and control the laying and repairing of gas pipes, etc. Also to prevent the encumbering of streets, alleys, sidewalks and public grounds with carriages, etc.; to compel all persons to keep all weeds, filth and any kind of rubbish from the sidewalks, streets and gutters in front of the premises occupied by them; to require and compel the owners of property to fill up, grade, gravel and otherwise improve the sidewalks in front of and adjoining their property. Plaintiff read in evidence ordinances of the city requiring Pacific avenue and other streets mentioned to have sidewalks ten feet wide; also ordinance to punish persons for obstructing streets, or in any way to interfere with any street, or its free and unobstructed use. Pacific avenue is, by the ordinances, a. recognized street of the city The court instructed the jury that it plaintiff received his injuries in the manner stated in his petition; if the sidewalk was in a dangerous condition by reason of the ditch, and that the ditch or sidewalk was constructed by defendant, and if prior to the time plaintiff was injured defendant had notice of the dangerous condition of the sidewalk or ditch, and plaintiff was guilty of no negligence on his part contributing to his injuries, to find for plaintiff actual damages. But if the sidewalk was not in a dangerous condition for ordinary travel to find for defendant; also that, if there was no evidence that defendant '.constructed the sidewalk or ditch, and no evidence that defendant took charge of them, to find for defendant, and if there was no evidence that before plaintiff was injured defendant had notice of the condition of the sidewalk or ditch, to find for defendant. Verdict and judgment for defendant, and plaintiff appealed.