City of Austin v. Daniels

335 S.W.2d 753, 160 Tex. 628, 81 A.L.R. 2d 1180, 3 Tex. Sup. Ct. J. 329, 1960 Tex. LEXIS 558

• Court: Texas Supreme Court
• Decided: April 20, 1960
• Docket: A-7315
• Status: Published

Opinions

Mr. Justice Greenhill

delivered the opinion of the Court.

Sarah Daniels brought this suit against the city alleging that she was injured when she slipped and fell on some wet paint in the street. The paint had been freshly put down by city employees to indicate the area for the parking of cars adjacent to the curb and a parking meter. The trial court entered judgment for Sarah Daniels based upon the jury’s verdict. That judgment was affirmed by the Court of Civil Appeals. 322 S.W. 2d 384. We here affirm the judgments below.

The areas set aside for parking of automobiles were designated by painted lines. The lines had become worn. Under the direction of appropriate city employees, they had just been repainted. No devices, signs, or other methods of warning' were used to call attention to the wet paint. While the paint was of a fast-drying variety, the testimony varied as to the length of time it took to dry. The upper surface of the painted line dried first. This crust gave the line the appearance of the paint’s being dry.

Sarah Daniels parked her car in one of the designated spaces. She got out of the left side of her car, away from the curb, and walked around to deposit a coin in the parking meter. In so doing, she slipped in the'paint and injured herself. From her testimony and from the paint bn her clothes, there is ample evidence to support the jury’s finding that she did fall down in the wet paint.

The jury found that the acts of the city’s employees in placing the paint on the street under the circumstances constituted negligence; that their acts created a dangerous condition in the street; that the dangerous condition was hidden and concealed from plaintiff, Sarah Daniels; that the placing of the paint on the street under all the circumstances rendered this portion of the street in a condition that was not reasonably safe and created a hazardous and unsafe condition on the street. Each of these acts was found to be negligence and a proximate cause of Sarah Daniels’ injuries. The jury further found that the failure to place any warning signs or devices was also negligence and a proximate cause. The jury found that the incident was not an unavoidable accident and that Sarah Daniels was not contributorily negligent.

1,2 The law questions which arise from these circumstances are complicated and difficult. When acting in a governmental capacity, the city is not liable in damages for torts of its employees.¹ It is here conceded that regulation of traffic is generally held to be a governmental function and that the control of of parking has been held to be part of the regulation of traffic.²

On the other hand, the maintenance of streets is a proprietary function. Negligence in the performance of this function renders the city liable for resulting injuries. City of Houston v. Shilling, 150 Texas 387, 240 S.W. 2d 1010, 26 A.L.R. 2d 935 (1951) ; City of Austin v. Schmedes, 154 Texas 416, 279 S.W. 2d 326, 52 Á.L.R. 680 (1955). And the city is under a duty to maintain the streets in a reasonably safe condition. This function has likewise been classified as proprietary. City of Galveston v. Posnainsky, 62 Texas 118 (1884) .³

The problems here then are (1) is there evidence of negligence on the part of the city? That question will be discussed later herein. (2) Assuming ngligence, what is the law where the city has breached its duty to maintain the streets in a reasonably safe condition when the acts performed are also connected with the governmental function of regulating traffic? (3) Is there any evidence to support the jury’s finding that the fall of Sarah Daniels caused the injuries for which she was awarded damages? This question will likewise be discussed later herein.

Some of the Texas cases in which cities have been held liable for negligence in failing to maintain streets or sidewalks in a reasonably safe condition have involved obstructions.⁴ In others, the cities have been held liable for their negligence in leaving holes or unguarded openings in streets or sidewalks.⁵

In other jurisdictions cities have been held liable for allowing- ice and snow to remain on the streets and sidewalks, assuming negligence under all the facts and circumstances.⁶

In City of Waco v. Diamond, Texas Com. App., 65 S.W. 2d 272 (1933), the plaintiff slipped on ice after getting off a streetcar. The Texas Commission of Appeals recognized a duty to keep the streets in a reasonably, safe condition but reversed the case because, under all the facts and circumstances (an unprecedented freeze and a 15-inch snow) there was no evidence of negligence on the part of the city.

And in Dlgado v. Town of Billerica, 323 Mass. 483, 82 N.E. 2d 591, 1948, the city was held liable for injuries caused when the car in which plaintiff was riding slipped in oil freshly applied to a street where no sign or other warning was given of the unsafe condition in the street.⁷

From these cases dealing with the proprietary function, we turn to those dealing with the regulation of traffic which have been held to be governmental. Where signal lights were out of order, i.e., traffic from all four directions got a green light and a collision resulted, liability of the city has been denied.⁸ Similarly, the cities have been absolved of liability for negligence in failing to install a central switch to operate all traffic signals in the paths of fire or police vehicles making emergency runs.⁹

Johnson v. City of Jackson, 194 Tenn. 20, 1952, 250 S.W. 2d 1, 33 A.L.R. 2d 756, involved a combination of two governmental functions and liability was denied. There a policeman, riding a motorcycle and checking parking meters, ran over the plaintiff. The city’s demurrer was sustained.

Each of these cases involved the direction of traffic and the use of the street for a governmental function, and did not involve the condition of the street itself.

There have been a number of cases where use of the street for a governmental purpose has combined with the proprietary function of properly maintaining the streets. In City of Port Arthur v. Wallace, 141 Texas 201, 171 S.W. 2d 480 (1943), a firetruck swerved out of its path because of holes in the street and struck the plaintiff. The court recognized that the city acted in a governmental capacity in operating the firetruck and in a proprietary capacity in failing to maintain the streets in a reasonably safe condition. It was held that where the defect in the street combines with other causes to produce the injury, the city was liable.¹⁰

The Port Arthur-Wallace case cited with approval, among others, two cases. The first is City of Austin v. Schlegel, (Texas Comm. App., 1924) 257 S.W. 238. There a firetruck, on its way to a fire, slowed down to pick up a civilian volunteer. He got bumped off the truck when it hit a hole in the street. The city was held liable. The second case was Kling v. City of Austin, 62 S.W. 2d 689 (no writ, 1933). There the city allowed a fire hydrant to remain in a driveway to a filling station. It was struck by plaintiff’s car at night. Judge McClendon there wrote:

“The precise question here is whether breach of this duty [to maintain streets] is rendered nonactionable where the unsafe condition is caused by either the improper location of a governmental function instrumentality or the failure to properly guard such instrumentality so as to render it reasonably safe.”¹¹

It was held in the Kling case that “the duty to maintain the reasonable safety of the streets would impose the obligation” to use reasonable means to guard against the hazard. The city was held liable.¹²

The governmental function of traffic regulation and the proprietary function of maintenance of the streets also merged in Crow v. City of San Antonio, 157 Texas 250, 301 S.W. 2d 628 (1957). There, to protect school children crossing a street, a fireman had stretched a rope across a street. Its function was to direct traffic away from the school crossing. The plaintiff, riding a motorcycle, failed to see the rope and was injured. The Court of Civil Appeals held that the rope had nothing to do with maintenance of the streets; that it was there in the governmental function of regulating traffic. 294 S.W. 2d 899. This Court reversed and rendered the judgment of the Court of Civil Appeals. Citing the cases above set out, it was held that the city owed the duty to maintain its streets in a reasonably safe condition for travel, and that the duty existed even though the city was at the same time exercising a governmental function.¹³

The case nearest in point, from the standpoint of physical facts, is that of Cleary v. City of New York, 47 N.Y.S. 2d 456 (1944).¹⁴ There, as here, the plaintiff slipped in wet paint put down on a traffic lane. The jury found that the city was negligent and absolved the plaintiff of contributory negligence. It was held that while the regulation of traffic was governmental, the city nevertheless owed the duty to maintain the surface of the street in a reasonably safe condition. The court distinguished a New York case in which a collision occurred when the city, exercising a governmental function, negligently allowed traffic lights to show green in all four directions.

This is the first case in this Court dealing with a slippery substance deliberately put upon the surface of a street by a city. Nevertheless, if negligence is proved, the defect or hazard created may be just as serious a condition as an obstacle, a hole, or a rope stretched across the street. It certainly may be as dangerous as ice negligently allowed to remain on the street, liability for which follows in many states. If the firetrucks in the Port Arthur-Wallace or the Austin-Schlegel cases had skidded off their course in fresh oil or paint placed in the street in a negligent manner by the city instead of by a hole in the street, would the result have been different?

3 We think the facts here bring the case within the rule stated in 25 American Jurisprudence 651:

“The rule which is supported by the weight of authority and seems to be more consistent with fundamental principles is that nublic liability for injuries resulting from defective streets or other public ways may be predicated upon unsafe conditions resulting from acts done by public officers in the exercise of the police power or in the performance of governmental duties where the responsible * * * authorities are chargeable with negligence * * * .” 25 Am. Jur. 651, section 358.

We hold that the courts below correctly held that the city was not immune from suit and liability under the facts and circumstances of this case, asuuming negligence.

4 We turn now to the question of • negligence on the part of the city. The jury found that the act of the employees in placing paint on the street under the circumstances and at the time and place in question was negligence. There is no assignment of error here that there is no evidence to support this finding of the jury. The jury further found that the acts of the city employees in putting wet paint upon the street under all the circumstances created a hazardous and unsafe condition upon the street, and that such acts constituted negligence. There is no assignment of error here that there was no evidence to' support these findings.

The city does have assignments of error that there was no evidence to support the findings of the jury that the city was negligent in failing to place signs or devices warning of the wet paint. In that regard, the city’s employee, Dunham, testified that the paint began to dry from the outside and a crust formed on top of it. An inexperienced person could not tell whether the paint was wet or dry. The foreman of the painting crew testified that the city did use barricades, flares, or cones when painting stripes in the center of the street, at stop lights, and crosswalks. These were placed there to protect the paint and to warn people of a wet, slippery condition. The paint was slippery when applied. He said a person would slip on it if he “wouldn’t watch.” The city had signs which could be hung on the parking meters to warn of fresh paint, but they were not used here. The city argues that to place cones in the street would create a hazard as well as warn of one. Certainly the hazard resulting from the use of cones to warn of freshly painted parking lines would be no greater than that caused by their use in other places in the street. It would be for the jury to decide whether ordinary care required their use. We think there was some evidence to support the jury’s finding of failure to warn.

5 The city’s fourth point is that the trial court erred in submitting the issue to the jury regarding the creation of a dangerous condition' in the street because the condition “was too trivial for minds of reasonable men to differ” upon whether it could be foreseen that an accident would occur. The city made no such objection to the issue in the trial court. The point was not made in its motion for summary judgment, in its motion for judgment notwithstanding the verdict, or in its motion for new trial. There was no motion for an instructed verdict. The point was raised for the first time by amendment to its brief in the Court of Civil Appeals after the opinion in City of San Antonio v. Chabot, 318 S.W. 2d 485, Texas Civ. App., 1958, writ refused, no reversible error. The question was therefore not preserved. Texas R. Civ. P., Rule 374.

6 The city contends that there is no evidence to sustain the finding of the jury that Sarah Daniels was injured by the fall or that her injuries were caused by the fall. In addition to her testimony of bleeding, pain in the back and pelvic area, and a loss of earnings, Dr. Todaro testified that the fall in question caused her vaginal bleeding and bruises, and that her disability, resulting from the bone injury and sprains caused by her fall, will continue in the future. Other facts concerning her injury and condition are set out in the opinion of the Court of Civil Appeals, 322 S.W. 2d at 389. The point is overruled.

7 Finally, the city contends that the jury’s award of $5,000 was excessive as a matter of law. There is no contention that the courts below used the wrong measure of damages or legal test to determine excessiveness. No question of remittitur is involved. We therefore are without jurisdiction to pass unon the point. Port Terminal Ry. Ass’n v. Ross, 155 Texas 447, 289 S.W. 2d 220, at 226 (1956) ; Beaumont, S.L. & W. Ry. v. Schmidt, 123 Texas 580, 72 S.W. 2d 899 (1934).

The judgments of the courts below are affirmed.

Opinion delivered April 20, 1960.

1 . — City of Fort Worth v. George, 108 S.W. 2d 929 (writ refused, 1937) where plaintiff was injured when city garbage truck was driven into a fence by which she was standing.

2 . — City of Abilene v. Woodlock, 282 S.W. 2d 736 (writ refused, 1955), where the city prohibited parking along a street, it was held that the. regulation was a reasonable exercise of the police power. Harper v. City of Wichita Falls, 105 S.W. 2d 743 (writ refused, 1937), upholding the power of the city to install and operate parking meters as bearing a reasonable relationship to1 the regulation of traffic. See annotation 33 A.L.R. 2d 761: Installation or Operation of parking meters as within governmental immunity from tort liability.

3 . —In writing the Posnainsk opinion, Justice Stayton set out the basis for the distinction between governmental and proprietary functions, particularly as to streets:

When the municipal corporation is acting in a purely public character “forced upon it without its consent, simply because the state can thus, through such local agencies, more easily and effectively discharge duties essentially its own, it is but proper that no action should be maintained against it for the negligence * * * of its officers * * * .” 62 Texas at 125.

“It would seem that, in so far as municipal corporations * * * exercise powers conferred on them for purposes essentially public — purposes pertaining to the administration of general laws made to enforce the general policy of the state, — they should be deemed agencies of the state, and not subjct to be sued * * *; that, in reference to such matters, they should stand as does sovereignty, whose agents they are * * *.

“In so far, however, as they exercise powers not of this character, voluntarily assumed — powers intended for the private advantage and benefit of the locality and its inhabitants, — there seems to be no sufficient reason why they should be relieved from that liability to suit * * * to which an individual or private corporation * * * would be liable.” 62 Texas 127. This last quoted paragraph is used by McQuillin as the law. 19 McQuillin on Municipal Corporations (3rd ed.) 190, section 53.23.

For the general proposition that a city is required to exercise ordinary or reasonable care to maintain its streets and sidewalks in a reasonably safe condition, see 63 C.J.S. 88 and 114, Municipal Corporations, sections 782 and 802; 19 McQuillin on Municipal Corporations 12 and 77, sections 55.02 and 54.17.

4 . —E.g., a tree stump in an area outside of the traveled portion of the highway where it is not improbable that injury may occur. City of Waco v. Darnell, 35 S. W. 2d 134 (Texas Comm. App., 1931); leaving a pile of dirt at the end of plaintiff’s sidewalk. Shuford v. City of Dallas, 144 Texas 342, 190 S.W. 2d 721 (1945).

5 . —E.g., injuries received when the plaintiff’s minor daughter fell into an unguarded drain or gutter next to the sidewalk. City of Galveston v. Posnainsky, 62 Texas 118 (1884); where plaintiff fell into an unguarded and open culvert in the street. Gabbert v. City of Brownwood, 176 S.W. 2d 344 (writ refused, 1943); where plaintiff broke her ankle stepping in a hole in the street. City of Beaumont v. Baker, 95 S.W. 2d 1365 (writ dismissed, 1936); and where plaintiff was injured where city employees negligently failed to replace a slab over a ditch. City of Grandview v. Ingle, 90 S.W. 2d 855 (writ dismissed, 1936).

6 . —“A municipal corporation may be liable for injuries incurred as a result of its failure to use the care required of it in connection with water, snow, and ice on its streets and sidewalks, except to the extent that statutes exempt it from liability.” 63 C.J.S. 140, Municipal Corporations, section 811. See Annotation 39 A.L.R. 2d 782, at 787 and 788.

7 . —There is a statute involved in the Delgado case (G. L. (Ter. Ed.) c. 84, section 15) but it announces the common law on this subject as followed in Texas.

8 . —Parson v. Texas City, 259 S.W. 2d 333 (writ refused, 1953). That opinion does not discuss the duty to maintain streets. It rejects plaintiff’s theory of nuisance because there was no invasion of property rights and because the signals themselves were not inherently dangerous. To the same effect is Burchett v. City of Stanton, 262 S.W. 2d 952 (no writ, 1953).

9 . —Baker v. City of Waco, 129 S.W. 2d 499 (no writ, 1939), collision with a police car; Presley v. City of Odessa, 263 SW. 2d 293 (no writ, 1952) where plaintiff collided with a firetruck which ran a red light.

10 . — The Port Arthur-W allace opinion is followed in City of Houston v. Wolverton, 154 Texas 325, 277 S.W. 2d 101 (1955). There a city employee operated a city car on a governmental task, checking milk and dairies. At the time of the accident, however, he had finished with his checking and was on his way to a city garage to get the car inspected and repaired, a proprietary function under City of Houston v. Shilling, supra. It was held that the city was liable.

11 . — The above language from the Kling case is quoted in this Court’s opinion in Crow v. City of San Antonio, 157 Texas 250, 301 S.W. 2d 628, at 630 (1957) which follows the Kling case.

12 . —Cited in the Kling case is City of Augusta v. Cleveland, 148 Ga. 734, 98 SE 345, where the plaintiff fell into an open hole in a sidewalk leading to a sanitary sewer. Conceding that the sewer system was governmental, the city nevertheless owed the duty to maintain the sidewalks in a reasonably safe condition.

13 . —The dissent in the Crow case points up these considerations: the holding is not based on nuisance; it is not based on any obstacle in the street itself; and the rope had nothing to do with repairing the street.

14 . —The decision of this lower court of New York is, of course, not binding on on this court, but its reasoning is persuasive. New York has a statute on the general subject applicable to the state eliminating governmental immunity, but the opinion neither mentions nor relies on it as being applicable to cities. Ct. of Claims Act, sections 8 and 12 a. The reasoning of the opinion is independent of the statute. The same reasoning and result is reached in Kamnitzer v. City of New York. 265 Apt). Div. 436, 40 N.Y.S. 2d 139, where plaintiff ran into a traffic signal pole which was bent and extended out into the traveled portion of a street.