City of Houston v. Boecher

411 S.W.2d 409, 1967 Tex. App. LEXIS 2865
CourtCourt of Appeals of Texas
DecidedJanuary 26, 1967
DocketNo. 14949
StatusPublished
Cited by2 cases

This text of 411 S.W.2d 409 (City of Houston v. Boecher) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Houston v. Boecher, 411 S.W.2d 409, 1967 Tex. App. LEXIS 2865 (Tex. Ct. App. 1967).

Opinion

WERLEIN, Justice.

Appellee, Mrs. Nancy Boecher, brought this suit to recover damages for personal injuries sustained by her at about 6 o’clock p. m. on May 26, 1962, when she fell while walking in a westerly direction along and over the sidewalk on the south side of the 700 block of McGowen Avenue, Houston, Texas. The sidewalk where she fell was broken into a number of separate pieces of concrete, some large and some small. It had been in such condition for many years, but was in a little worse condition in 1962 than during the earlier years that she had used it. She had walked over this broken sidewalk many times, at least as many as one hundred times.

She testified that on this particular occasion she stepped on one of the broken pieces of concrete, and that it slipped or tilted downward causing her to lose her footing and fall; that the piece of concrete upon which she stepped was about a foot wide nearest her and narrowed down to kind of a point, but was large enough for a man to step on it; that there was nothing about its appearance which would indicate there was anything wrong with it, and that it was level; that she could not tell whether the sidewalk was in exactly the same condition at all times or whether it was in the same condition at the time she fell that it was in a week before when she had walked over it, but it looked the same; that “you [411]*411don’t always step on the same stone each time you go through there.” She further testified that she knew the sidewalk was broken and in bad condition but she could not tell by looking at it that the piece she stepped on would tilt forward; that she did not think of it as dangerous; that she could see as well as anyone else but couldn’t see underneath the stones to see what the condition might be there.

The jury found that the broken area of the sidewalk where appellee fell constituted a defective condition; that the City officials, agents and employees knew, or in the exercise of ordinary care should have known, of the existence of the broken area of the sidewalk; that appellant, its officials, agents, servants and employees, by the exercise of ordinary care, should have known of the existence of such broken sidewalk for such length of time as to have enabled the City, in the exercise of ordinary care, to have repaired said unsafe condition, and that in failing to repair the sidewalk they did not exercise that degree of care that a person of ordinary prudence would have done under the same or similar circumstances, and that such failure was a proximate cause of appellee’s injuries.

The jury found that appellee did not fail to keep such lookout as would have been kept by a person of ordinary prudence, in the exercise of ordinary care; that appellee did know or in the exercise of ordinary care should have known of the condition of the sidewalk in question; that she did not appreciate, or in the exercise of ordinary care should have appreciated, the full extent of the danger involved in the use of the sidewalk in question, and that her fall was not the result of an unavoidable accident.

Appellant in substance contends that the court erred in not sustaining its motions to render judgment in its favor and also in failing to render judgment non obstante veredicto for the reason that the condition of the sidewalk was open and obvious to ap-pellee and that as a matter of law she should have known and appreciated the dangers incident to walking on said sidewalk. Appellant further asserts that the evidence conclusively shows that appellee was guilty of negligence proximately causing her injuries, and that the condition complained of by her was as easily perceptible to her as it would have been to appellant. All of appellant’s points are “no evidence” points.

Appellee asserts that this is not an ordinary slip and fall case. Mrs. Boecher testified that she did not slip on the concrete, did not stump her toe or hang her heel; that she just stepped on the piece of concrete and it slipped forward and her foot went along with it, and that she did not stumble. She admitted that she had been over the sidewalk many, many times and knew its general condition as being a broken sidewalk, but she did not know that the piece of concrete upon which she stepped would move downward, and did not know what was underneath such piece of concrete. It is appellee’s position that there was a latent defective condition which ap-pellee didn’t know existed and did not appreciate or consider dangerous. It is appellant’s contention that whatever condition was there was as open and obvious to her as to anyone else, including the officers, agents, servants and employees of the City. There is no evidence that she had ever stepped on this particular piece of concrete before or that any other piece of concrete that she had stepped on in using the sidewalk had ever given way or slid or moved downward.

The law is well settled that it is the duty of a municipal corporation to exercise ordinary care to maintain its streets and sidewalks in a reasonably safe condition for public use. Dozier v. City of Gatesville, 121 Tex. 389, 48 S.W.2d 971; City of Dallas v. Maxwell, Tex.Com.App., 248 S.W. 667, 27 A.L.R. 927; City of Austin v. Daniels, 1960, 160 Tex. 628, 335 S.W.2d 753, 81 A.L. R.2d 1180; 27 A.L.R. 927; 28 Tex.Jur.2d 255, Highways and Streets, § 214, and authorities cited. The general broken condition of the sidewalk had existed for such [412]*412a long period of time that the City was charged with notice of its condition.

Ordinarily actual notice to the City of the condition of a sidewalk is not necessary. It is sufficient if those charged with the supervision, control and superintendence of the sidewalk, by the exercise of reasonable care and diligence, could have known of the defective condition. Whether the City’s knowledge of the defect was reasonably acquired in time to have effected a remedy is a question of fact for the jury’s determination. City of Waxahachie v. Harvey, 255 S.W.2d 549, Tex.Civ. App., 1953, error ref., n. r. e.; Garrett v. City of Wichita Falls, 329 S.W.2d 491, Tex. Civ.App.1959, n. w. h.; 40 Tex.Jur.2d, p. 330, § 640. In the instant case the jury found that the City by the exercise of ordinary care should have known of the broken sidewalk for such length of time as to have enabled it in the exercise of ordinary care to have repaired the unsafe condition. The evidence amply supports such finding. Obviously, if the City had repaired the sidewalk properly or constructed a new sidewalk, appellee would not have been injured.

The question arises, however, whether it was necessary for the City to have notice of the particular defective condition which caused appellee to fall. It has been held that notice that a sidewalk is generally defective will charge the City with notice of particular related defects therein at that point. In 63 C.J.S. Municipal Corporations § 831, pp. 171-172, it is stated:

“The fact that the municipality has notice that a sidewalk or way at a particular point is generally defective will charge it with notice of particular defects therein at that point, provided the general defect is of the same general character as the particular one which causes the accident, or the latter is a usual concomitant of the former.

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Bluebook (online)
411 S.W.2d 409, 1967 Tex. App. LEXIS 2865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-houston-v-boecher-texapp-1967.