Lentz v. City of Dallas

72 S.W. 59, 96 Tex. 258, 1903 Tex. LEXIS 129

• Court: Texas Supreme Court
• Decided: February 23, 1903
• Docket: No. 1159.
• Status: Published

Opinion

WILLIAMS, Associate Justice.

Plaintiff, a child 10 years of age, stepped into a hole in a grating upon one of the sidewalks in Dallas, and for the injuries sustained recovered a judgment against the city, which on appeal was reversed by the Court of Civil Appeals, and judgment was rendered by that court in favor of the city. This action of the Court of Civil Appeals, was based upon a provision of the charter of Dallas which was construed as exempting the city from the liability asserted against it. The evidence showed that the owner of a building which abutted upon the sidewalk had made an excavation under it and had inserted the grating to cover the opening in the walk thus made. At the time of the accident, -according to testimony adduced for plaintiff, there was a hole in this grating into which the child stepped, and which had existed so long that the city ought to have known of and remedied it. The charter gave to the city complete control over the streets and sidewalks, and contained these further provisions:

“See. 55. The cost of constructing sidewalks and keeping the same in repair, together with the cost of collection, shall be entirely defrayed by the property owners in such manner as the city council may provide, and shall be a perpetual lien on the property in question until paid.”

“Sec. 159. Whenever the city council, by resolution or otherwise, orders the construction of any sidewalk, it shall specify/the kind of sidewalk required to be constructed and the width of same to be so constructed, and thereupon the city engineer shall issue a notice which shall be served upon the owner of such property, if in the city, or if such owner shall be out of the city, such notice shall be published in some newspaper published in the city of Dallas five consecutive days. Such notice shall state the place where such sidewalk is required to be constructed, the kind of sidewalk required to be constructed and the width thereof, and the length of time, which shall not be more than thirty days from the date of the service of such notice, within which such side^ walk is required to be constructed, and that such property owner must proceed to construct the same, or appear before the city council at a regular meeting, giving the date of such meeting, and show cause why the'same should not be constructed; and if such property owner -shall not construct the same within the time required by the city council in the.order or resolution of the city council requiring the same to be constructed, or shall not be excused from constructing the same by the city council, the city council shall advertise for bids for the construction of such sidewalk, and shall let a contract therefor to the lowest responsible bidder, in the discretion of the council; such contract may be for any length or amount of sidewalk. As soon as practicable after the letting of such contract the city engineer shall furnish the city council a statement showing the name of the owners of the property abutting on the sidewalk so constructed, if known, if not known shall so state, and a description of the property owned by such owners and the cost of the sidewalk immediately in front of the property so improved, and such cost shall be levied and assessed by the city council by ordinance against the property according to such statement by the city engineer, and said tax shall be a lien against such property from the date of the letting of such contract. Such ordinance shall state the amount of such tax against such respective lots or subdivisions of land, and the time when the same shall become due and delinquent; and if the same shall not be paid when due, the city collector shall proceed, as soon as practicable, to advertise and sell such property for the payment of such taxes, provided in cases of sale of such property for ad valorem taxes; provided, that it shall not be necessary that such sale shall take place at the same time as sales of property for ad valorem taxes. In the event that because the same adjoins a homestead, or for any other reason, the city is unable to lawfully compel the owner to construct and repair a sidewalk by fixing a lien on his property for the cost, the city of Dallas shall never be liable for damages to any person or property by reason of any defect in any such sidewalk not immediately occasioned by the direct act of the city, or of some officer for whose acts the city is responsible at law; and in all cases the property owner on whose property any sidewalk abuts, shall be under the duty to the public, as well as to the city, to keep the said sidewalk in repair, and shall be primarily liable to any and all persons for any injuries whatever occasioned to them or their property by reason of any such defect occurring by reason of the neglect or omission of such property owner to repair such sidewalk and to keep the same in repair, or by reason of his unlawful or wrongful act. In the event of a judgment against the city in all such cases where the property owner is made liable for damages by the provisions of this section, the city shall be entitled to a recovery over against any such property owner held to be primarily liable for such damages under the provisions aforesaid.”

The defense sustained by the Court of Civil Appeals is that, under the authority of Hutcheson v. Storrie, 92 Texas, 685, and Norwood v. Baker, 172 U. S., 269, those parts of section 159 which prescribe a mode of constructing and repairing sidewalks and of charging the cost thereof against the abutting property, are unconstitutional and void; that, therefore, “the city is unable to lawfully compel the owner to construct and repair the sidewalk by fixing a lien upon his property for the cost;” and hence is exempted by the latter part of the article from liability for the injury to plaintiff. In the two cases referred to assessments for improvements of streets were involved, assessments which could only be lawfully imposed in the exercise of the taxing power, exerted in subordination to the fundamental principles which limit the exercise of that power. The principle held to be disregarded in those cases was that which restricts the special burden to be imposed upon the adjacent property to an amount not in excess of the benefit resulting specially to such property from the improvement.- Whether or not, if the principle of those decisions were applied to the provision quoted, it would on its face appear to be unconstitutional, is a question "which this case, as we view it, does not present. Besides the taxing power, under which local assessments are levied, the city was invested with the police power which was ample to have enabled it to have_ caused the removal of the dangerous defect which existed in this sidewalk. Says Judge Cooley:

“The cases of assessments for the construction of walks by the side of the streets, in cities and other populous places, are inore distinctly referable to the power of police. These footwalks are not only required, as a rule, to be put and kept in proper condition for use by the adjacent proprietors, but it is quite customary to confer by the municipal charters full authority upon the municipalities to order the walks of a kind and quality by them prescribed to be constructed by the owners of adjacent lots at their own expense, within a time limited by the order for the purpose, and in case of their failure so to construct them, to provide ,that it shall be done by the public authorities, and the cost collected from such owners, or made a lien upon their property. When this is the law the duty must be looked upon as being enjoined as a regulation of police, because of the peculiar interest such owners have in the walks, and because their situation gives them peculiar fitness and ability for performing, with promptness and convenience, the duty of putting them in proper state, and of afterwards keeping them in a condition suitable for use. Upon these grounds the authority to establish such regulations has been supported with little dissent.

“No doubt this requirement is sometimes in a measure oppressive, since the actual cost may exceed the pecuniary advantages to the lot owner; but this, in case of police regulations, is never a conclusive objection.”

Another question which we need not determine is, whether or not article 159 is a legitimate exercise of police power, or is to be referred to the taxing power. For conceding for the purpose of argument, that the latter view of it is the correct one, the general power given to the city of Dallas over its sidewalks was sufficient to enable it to prevent or remedy such conditions as were shown to exist in this case. Macon v. Patty, 57 Miss., 407; Greensburg v. Young, 53 Pa. St., 280; Franklin v. Maberry, 6 Humph., 368; Washington v. Nashville, 1 Swan., 177; Goddard Petitioner, 16 Pick., 504; Woodbridge v. Detroit, 8 Mich., 309. These authorities, as well as the quotation from Cooley, go much further than it is necessary for us to go in this case. It was not at all necessary for the city to resort to the power given in cited provisions of the charter in order to have filled a hole in a sidewalk already constructed. Those provisions evidently contemplate, construction and repairs of such magnitude as to make proper the adoption of the method thus provided for the doing of the work .and fixing and defraying, the expense, and are wholly inapplicable to such an inconsiderable work as the repairing of this grating; and since, in order to make such a repair, the city would not be required to resort to the proceeding provided in section 159, it follows, we think, that the provision giving immunity has no application. While the language of the exemption is that the city, in the event supposed, shall not be liable because of “any defect,” the context makes it evident that the defects meant are such as are intended to be prevented by the exercise of the power just granted, and which exist because such power proves futile. The exemption has no application when the machinery, because of the failure of which-such exemption is granted, is not to be relied on. It is unreasonable to suppose that the Legislature purposed that the- city should resort to the cumbrous method devised for the construction and repair of sidewalks whenever it should. become necessary to fill a hole therein. For such conditions the police power was entirely adequate, and there was no purpose to exempt the city from liability for damages resulting from a negligent failure to exercise that power, when the exercise of it and not the proceedings provided in section 159 were called for.

We are therefore of the opinion that the Court of Civil Appeals erred in sustaining this defense; and this makes it necessary that we examine the other grounds for reversal urged by the city before that court. We shall notice only those assignments which are held to- present reversible . error, and those upon which an expression may aid in another trial.

The petition alleged the defects in the grating to be that the iron was originally too light and insufficient to afford protection to passers, and that the frames and bars of it were broken. Plaintiff was allowed to ask a witness, who showed no qualification to give an opinion, this question: “Those grates were mighty light to start with?” To which the witness answered: “I am not an iron man, but I Would judge they were rather light for that purpose, as they were broken out, and they did not stand the test they were used for.” The question was plainly leading and the answer expressed a mere conclusion of the witness, and a conclusion which the jury could draw as well as the witness. The objections made to them should have been sustained.

The charge of the court submitted to the jury whether' the bars of the. grating were “broken or misplaced,” and the point is urged, that, the petition having specifically alleged only that the parts were broken, a recovery because they were misplaced should not have been allowed. It is difficult to determine, from the way in which the evidence is stated, whether, or not there was anything material in the part of the instruction assailed. Plaintiff’s evidence tended to show that the bars were broken and there is much other evidence as to the condition of the grating, but whether there was any to which the word misplaced would have applied so as to make its use material, we do not clearly see from the evidence. As this may be easily remedied, there is no need for further comment, and it is likewise unnecessary that we determine whether or not, in either of the matters just discussed, there is reversible error.

The physician who treated plaintiff, when giving his opinion as to the nature, extent and duration of the injuries, was asked: “Is it not a fact that in medicine and surgery injuries apparently trifling in their nature, like broken ribs, etc., will produce effects in themselves that no one can foresee?” and answered in the affirmative. The objection to this, that it was not confined to the probable effects of the injuries, should have been sustained. Both question and answer assumed to speak of results not reasonably to be anticipated. Gulf, etc., Railway Co. v. Harriett, 80 Texas, 83. The court should, also have given the charge requested by defendant, restricting plaintiff’s recovery for future results of the injuries to such as would reasonably and probably result. Both of these rulings affect the amount of the recovery, which is large, and necessitate a reversal.

Reversed and remanded.