Collard, Judge.
This suit was brought by the appellee against the appellant to recover damages for personal injuries alleged to have been sustained by plaintiff by being overturned while attempting to drive his spring wagon across a ditch at the intersection of Trinity and Mesquite Streets in the city of Austin.
Defendant excepted to the sufficiency of the petition because it was not alleged that the city had actual notice of the defective condition of the crossing, nor such facts as would amount to constructive notice of the same. The court overruled the exceptions and defendant has assigned the ruling as error.
It is settled by numerous authorities that a municipal corporation can not be held liable for injuries caused by defective streets, sidewalks, crossings, etc., unless it has actual or constructive notice of the defect. Klein v. City of Dallas, 71 Texas, 280. In the note to the above case in 8 Southwestern Reporter, 92, a safe rule is given as to constructive notice as follows: “If a state of facts exists such that ignorance can only arise from a failure to exercise reasonable official care, notice may be inferred by the jury.”
Notice actual or constructive must be left to the jury. They must determine the question as a fact from all the circumstances. “ What facts would be sufficient” to affect the corporation with the consequences of notice, that is what facts would amount to constructive notice, “would depend upon a variety of circumstances; the length of time the defect had existed, its notoriety, the frequency of travel over it, and the character of the defect itself.” Klein v. City of Dallas, supra.
It is an elementary rule of pleading in this State that every material fact necessary to constitute the cause of action must be alleged; if not alleged it can not become a basis of recovery. Gray v. Osborne, 24 Texas, 158; Sneed v. Hoodie, Id., 159.
It is alleged that the city negligently and improperly dug and excavated the ditch or drain so as to render the crossing dangerous and unfit for safe travel. This allegation is sufficient without an allegation of notice, because where a corporation makes a dangerous crossing no notice of it is necessary to be proved. The defendant could have limited the investigation to the above allegation.
The petition did not risk the case upon the one allegation charging the city with making the dangerous crossing. It proceeded to allege that in addition to the excavation of the ditch defendant permitted the same to become out of repair by washing, widening, and deepening to a dangerous width and depth so as to render the crossing exceedingly unsafe and hazardous. Notice of the facts stated in this averment should have been alleged. It was relied on for a recovery. After the evidence was offered on the trial it was by no means evident that the city dug the ditch, and the foregoing allegation that the city permitted the ditch to become and [400]*400remain dangerous to travel was of great importance, independent of other allegations. The assignment of error should be sustained only as to the latter allegations.
It is claimed that there was error in allowing plaintiff to read in evidence the answer of plaintiff to an interrogatory, as follows,-“My time was worth to my family at least $125 per month,” because the answer was inadmissible in estimating the damages. We agree with appellant. The answer ivas inadmissible. The jury estimated plaintiff’s damages for loss of time while sick and disabled at $1500. What his time was worth to Ms family was not the question. The actual value of the time lost was the real issue on this branch of the case.
Mrs. Brackenridge and Miss McLean were sitting in a buggy looking on at the drive plaintiff Avas attempting to make across the ditch. After the plaintiff’s wagon turned over Mrs. Brackenridge threAV the reins to Miss McLean and went to the assistance of plaintiff. A Mr. Hoxhausen was-with plaintiff in his wagon at the time of the accident. After rendering such assistance to plaintiff as she could Mrs. Brackenridge returned to her buggy, Hoxhausen accompanying her, Avhen they drove doAvn the Avenue to a drug store. On the Avay to the drug store Hoxhausen stated that “when he and plaintiff reached the ditch he asked Mr. Ritz if he thought he could drive over it, and Mr. Ritz replied that he thought he could.” Defendant offered to prove this statement of Hoxhausen by Miss McLean.
Hoxhausen also stated to Mrs. Brackenridge on the drive to the drug store that “he did all he could to keep Mr. Ritz from attempting to drive across the ditch, but he insisted upon doing it.” These statements were objected to by plaintiff; the appellant insisted that they were admissible as res gestee. The court sustained the objection. We think the ruling Avas correct. The statements were but a narrative of Avhat occurred, not a part of the occurrence nor contemporaneous with it. The main fact Avas past. Hoxháusen’s declarations as to Avhat was said and done by him and Ritz were hearsay and inadmissible. 1 Greenl. Ev., sec. 110.
Defendant asked the court to charge the jury as folloAvs: “A person traveling on a public highway where a part of such highway is worked and traveled and a part thereof 'is not worked or traveled, is bound to keep upon the worked or traveled part of such highway if the same is in proper condition for travel; and if he goes out of such traveled Avay, either Avithin the limits of the highway or beyond such limits, and injuries result, then he can not recover for such injuries.” The court refused the charge; appellant says the ruling Avas error.
If a person is injured while voluntarily and without necessity traveling outside the limits of a public street the city would not be liable, but we can not say he would be required in all cases to drive on the worked [401]*401or traveled part ol the street; such part of the street might be the worst part of it, and more dangerous than the untraveled or unworked portion of it. We think the rule requiring the driver to use care in driving such as a person of ordinary intelligence and prudence would use under like circumstances is sufficient. A rule requiring the driver always to keep to the worked or traveled portion of the street would be not only too strict, but it would often conflict with his duty to use proper care for his own safety and convenience.
If there is no necessity to turn from the traveled track and it is in good condition and a traveler voluntarily deviates from it and receives an injury the city would not be liable; but if the traveled track is dangerous and in the exercise of proper care he turns and takes another part of the highway and receives an injury he would be entitled to recover. The jury must determine under all the circumstances whether the traveler in deviating from the usual path of travel and selecting another on the street was using reasonable and necessary care. Kelly v. Town of Fond du Lac, 31 Wis., 186.
It is said that “ ordinary care would prevent a traveler in deviating from a highway to avoid an obstruction from driving upon ground so sideling as to appear dangerous to a prudent man.” Ramsey v. Gravel Road Co., 81 Ind., 394; City of Scranton v. Hill, 102 Pa., 378. There might be circumstances when a traveler would be justified in leaving the highway entirely to avoid a dangerous way, as for example when there is a broken or dangerous bridge. Joyner v. Great Barrington, 118 Mass., 463. As said before these are questions for the jury under appropriate instructions.
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Collard, Judge.
This suit was brought by the appellee against the appellant to recover damages for personal injuries alleged to have been sustained by plaintiff by being overturned while attempting to drive his spring wagon across a ditch at the intersection of Trinity and Mesquite Streets in the city of Austin.
Defendant excepted to the sufficiency of the petition because it was not alleged that the city had actual notice of the defective condition of the crossing, nor such facts as would amount to constructive notice of the same. The court overruled the exceptions and defendant has assigned the ruling as error.
It is settled by numerous authorities that a municipal corporation can not be held liable for injuries caused by defective streets, sidewalks, crossings, etc., unless it has actual or constructive notice of the defect. Klein v. City of Dallas, 71 Texas, 280. In the note to the above case in 8 Southwestern Reporter, 92, a safe rule is given as to constructive notice as follows: “If a state of facts exists such that ignorance can only arise from a failure to exercise reasonable official care, notice may be inferred by the jury.”
Notice actual or constructive must be left to the jury. They must determine the question as a fact from all the circumstances. “ What facts would be sufficient” to affect the corporation with the consequences of notice, that is what facts would amount to constructive notice, “would depend upon a variety of circumstances; the length of time the defect had existed, its notoriety, the frequency of travel over it, and the character of the defect itself.” Klein v. City of Dallas, supra.
It is an elementary rule of pleading in this State that every material fact necessary to constitute the cause of action must be alleged; if not alleged it can not become a basis of recovery. Gray v. Osborne, 24 Texas, 158; Sneed v. Hoodie, Id., 159.
It is alleged that the city negligently and improperly dug and excavated the ditch or drain so as to render the crossing dangerous and unfit for safe travel. This allegation is sufficient without an allegation of notice, because where a corporation makes a dangerous crossing no notice of it is necessary to be proved. The defendant could have limited the investigation to the above allegation.
The petition did not risk the case upon the one allegation charging the city with making the dangerous crossing. It proceeded to allege that in addition to the excavation of the ditch defendant permitted the same to become out of repair by washing, widening, and deepening to a dangerous width and depth so as to render the crossing exceedingly unsafe and hazardous. Notice of the facts stated in this averment should have been alleged. It was relied on for a recovery. After the evidence was offered on the trial it was by no means evident that the city dug the ditch, and the foregoing allegation that the city permitted the ditch to become and [400]*400remain dangerous to travel was of great importance, independent of other allegations. The assignment of error should be sustained only as to the latter allegations.
It is claimed that there was error in allowing plaintiff to read in evidence the answer of plaintiff to an interrogatory, as follows,-“My time was worth to my family at least $125 per month,” because the answer was inadmissible in estimating the damages. We agree with appellant. The answer ivas inadmissible. The jury estimated plaintiff’s damages for loss of time while sick and disabled at $1500. What his time was worth to Ms family was not the question. The actual value of the time lost was the real issue on this branch of the case.
Mrs. Brackenridge and Miss McLean were sitting in a buggy looking on at the drive plaintiff Avas attempting to make across the ditch. After the plaintiff’s wagon turned over Mrs. Brackenridge threAV the reins to Miss McLean and went to the assistance of plaintiff. A Mr. Hoxhausen was-with plaintiff in his wagon at the time of the accident. After rendering such assistance to plaintiff as she could Mrs. Brackenridge returned to her buggy, Hoxhausen accompanying her, Avhen they drove doAvn the Avenue to a drug store. On the Avay to the drug store Hoxhausen stated that “when he and plaintiff reached the ditch he asked Mr. Ritz if he thought he could drive over it, and Mr. Ritz replied that he thought he could.” Defendant offered to prove this statement of Hoxhausen by Miss McLean.
Hoxhausen also stated to Mrs. Brackenridge on the drive to the drug store that “he did all he could to keep Mr. Ritz from attempting to drive across the ditch, but he insisted upon doing it.” These statements were objected to by plaintiff; the appellant insisted that they were admissible as res gestee. The court sustained the objection. We think the ruling Avas correct. The statements were but a narrative of Avhat occurred, not a part of the occurrence nor contemporaneous with it. The main fact Avas past. Hoxháusen’s declarations as to Avhat was said and done by him and Ritz were hearsay and inadmissible. 1 Greenl. Ev., sec. 110.
Defendant asked the court to charge the jury as folloAvs: “A person traveling on a public highway where a part of such highway is worked and traveled and a part thereof 'is not worked or traveled, is bound to keep upon the worked or traveled part of such highway if the same is in proper condition for travel; and if he goes out of such traveled Avay, either Avithin the limits of the highway or beyond such limits, and injuries result, then he can not recover for such injuries.” The court refused the charge; appellant says the ruling Avas error.
If a person is injured while voluntarily and without necessity traveling outside the limits of a public street the city would not be liable, but we can not say he would be required in all cases to drive on the worked [401]*401or traveled part ol the street; such part of the street might be the worst part of it, and more dangerous than the untraveled or unworked portion of it. We think the rule requiring the driver to use care in driving such as a person of ordinary intelligence and prudence would use under like circumstances is sufficient. A rule requiring the driver always to keep to the worked or traveled portion of the street would be not only too strict, but it would often conflict with his duty to use proper care for his own safety and convenience.
If there is no necessity to turn from the traveled track and it is in good condition and a traveler voluntarily deviates from it and receives an injury the city would not be liable; but if the traveled track is dangerous and in the exercise of proper care he turns and takes another part of the highway and receives an injury he would be entitled to recover. The jury must determine under all the circumstances whether the traveler in deviating from the usual path of travel and selecting another on the street was using reasonable and necessary care. Kelly v. Town of Fond du Lac, 31 Wis., 186.
It is said that “ ordinary care would prevent a traveler in deviating from a highway to avoid an obstruction from driving upon ground so sideling as to appear dangerous to a prudent man.” Ramsey v. Gravel Road Co., 81 Ind., 394; City of Scranton v. Hill, 102 Pa., 378. There might be circumstances when a traveler would be justified in leaving the highway entirely to avoid a dangerous way, as for example when there is a broken or dangerous bridge. Joyner v. Great Barrington, 118 Mass., 463. As said before these are questions for the jury under appropriate instructions.
The following instructions asked by defendant and refused by the court present the law of contributory negligence as we understand it: “If you find from the evidence that the plaintiff drove up to the ditch on Trinity Street, and that he saw or could by the exercise of ordinary care and prudence have seen the same, and that he could then have turned back and proceeded upon another route, or that he could have driven safely directly across the ditch, and instead of turning back or driving directly across he turned to the right and attempted to cross in a diagonal course and his vehicle was turned over by the ditch and he disabled, then before you can find for plaintiff you must find from the evidence that he acted with ordinary prudence and care and that he was guilty of no contributory negligence.” And the following: “If you find that the ditch was dangerous, that defendant had been guilty of negligence in permitting it to become and remain in such condition, still if you find that plaintiff was guilty of negligence in the manner in which he attempted to cross, and that his negligence contributed to the accident, and that the accident would not have occurred if plaintiff had exercised reasonable care, the plaintiff can not recover.” These instructions, with instructions [402]*402as to the meaning of reasonable care and contributory negligence, would have given the jury the law of this branch of the case.
The general charge of the court in relation to the duties of plaintiff is subject to criticism. The plaintiff was required by the charge to have used “such care in driving and crossing the ditch as an ordinary business man would use in like circumstances;” and again, “ if plaintiff failed to use such care for his own protection and safety in driving and selecting a place of crossing the ditch as an ordinary man would use under like circumstances,” etc. Plaintiff was required to use ordinary care, such as a person of ordinary intelligence and prudence would have used under like circumstances, not such as an ordinary business man or an ordinary man would have used. '
Appellant assigns as error .the refusal of the court to give the following requested charge:' “ The opening and widening of streets is a matter of discretion in the city government. If you find that the city of Austin had not opened up Trinity Street south of Mesquite Street as a public highway for travel in said city, then defendant would not be guilty of negligence in permitting a ditch or drain to form on said street by the natural flow of surface water or by other natural causes. The city would not become responsible for the condition of the street as a highway for travel until it had opened up and undertaken to put the same in condition for travel as a highway, and the fact that such street is named in the ordinances as a street of the city would not vary this rule.” There was evidence from which the jury might have found either way on the question as to whether Trinity Street, on which the injury to plaintiff occurred, had been worked or opened as a public highway for travel by authority of the city.
The question raised by the foregoing assignment has not been determined by the courts of last resort in this State. It was said in the case of The City of Galveston v. Posnainsky, 62 Texas, 118, that “when a municipal corporation accepts a charter giving defined powers the law imposes upon it the duty of faithfully exercising them, and gives an action for misfeasance or neglect in this respect to any person who may be injured by such failure of duty.”
In the case of Klein v. City of Dallas, 71 Texas, 280, it was held that where the charter of a city gave it control of the streets, sidewalks, sewers, etc., and its ordinances recognized a particular street as within the control of the city, it could not avoid responsibility for a neglected condition of the street so recognized.
In both the foregoing cases the streets and sidewalks in question were open, public streets, in use by the public and so recognized by the corporation. The doctrine announced was applicable only and was only intended to apply to such streets. It would not be held that every street in a city recognized in its charter and ordinances would have to be worked [403]*403and kept in repair. A remote street seldom used would be as expensive "to open and keep in repair as the important and needed thoroughfares. The opening of streets and the grading of unworked and unfrequented streets to which public travel has not been invited is a matter of legislative discretion with the board of officers whose duty it is to regulate such expenditures and see to the necessities and wants of the public. The number of streets, their locality, the character of the work to be done, the cost of the work, the amount of funds subject to the city’s control ior such improvements, are all matters to be considered by the board. There must of necessity be a discretion lodged with the board as to such matters.
When a street is opened and worked and offered to the public as suitable for travel the city is responsible for its being kept in repair, and if a street is commonly used by the public, that is if it becomes public by frequent use, the city acquiescing in such use would be responsible for its condition; if there are not funds to keep it in repair it is a matter of defense by proof. 2 Thomp. on Neg., p. 731, notes; City of Aurora v. Pulfer, 56 Ill., 271; Hines v. City of Lockport, 50 N. Y., 236; City of Joliet v. Varley, 35 Ill., 58; Phelps v. City of Mankato, 23 Minn., 279.
The jury were instructed by the court that “if they should find * * * an open ditch cut by the city,” etc. Appellant says this charge assumes that the city cut the ditch. We do not think it does.
Plaintiff was allowed to prove over defendant’s objection that plaintiff was short sighted and wore spectacles. The ruling is assigned as error. We think the evidence was admissible; it was a fact in the case. Such fact could not have required greater care on the part of defendant in performing its duties, but it would have some bearing upon the duties of plaintiff in attempting to cross. It was admissible upon the issue of contributory negligence.
Because of the errors pointed out herein we are of opinion the judgment of the court below should be reversed and the cause remanded.
Reversed and remanded.
Adopted December 4, 1888.
Motion for new trial overruled at Galveston Term.
John Dowell, for appellee, filed brief and argument for the motion.