City of Waco v. Alice L. Haynes

564 S.W.2d 388, 1978 Tex. App. LEXIS 4174

Opinion

HALL, Justice,

concurring.

I concur in the affirmance of the judgment. However, in doing so, it is necessary that I express my views on certain issues discussed in the majority opinion.

The evidence shows that the offset in the crack in question was from one-half inch to one inch in height. It was located directly in front of a door, and at the base of the steps leading up to the door, which was provided by the City for the frequent use of aged persons for entry into and exit from the Recreation Center. Under these circumstances, I agree with the majority’s holding that the defect was not trivial. See Stinnett v. City of Waco, 142 Tex. 648, 180 S.W.2d 433 (1944). I do not agree, however, that it was latent.

The City’s first point of error in which it is asserted that plaintiff was charged in law with notice, knowledge, and appreciation of the premises defect is based upon an assignment in the City’s motion for judgment non obstante veredicto. The record does not show that this motion was presented to nor acted upon by the court. Therefore this complaint is not before us for review, and I concur in overruling it solely upon this ground.