Woolf v. City of Dallas

311 S.W.2d 78, 1958 Tex. App. LEXIS 1838
CourtCourt of Appeals of Texas
DecidedJanuary 17, 1958
Docket15358
StatusPublished
Cited by3 cases

This text of 311 S.W.2d 78 (Woolf v. City of Dallas) 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
Woolf v. City of Dallas, 311 S.W.2d 78, 1958 Tex. App. LEXIS 1838 (Tex. Ct. App. 1958).

Opinion

CRAMER, Justice.

Appellants were plaintiffs and appellees were defendants in trial court and will be referred to as in the trial court in this opinion. Plaintiffs sought recovery for damages based on negligence against Luella Carver resulting from the alleged wrongful death of their four-year old child as a result of his drowning in a pool of water on property owned by Luella Carver, and against the City of Dallas who are alleged to have created and maintained the dangerous condition partly on city property. The parties to this appeal entered into an *79 agreement in writing in the trial court signed by the attorneys and all of the parties. Under such agreement the parties agreed in substance that the entire record of the evidence for the purposes of this appeal shall consist of the affidavits of (1) W. H. Buck, (2) H. H. Stirman, (3) Roy H. Briscoe, (4) Mrs. Luella Carver, (5) Ruth Harper, (6) Mrs. Lena M. Luck, (7) Mrs. Emma Harper, (8) Clarence Hudnall, Sr., and the controverting affidavits of (9) Mrs. Glen Doil Woolf, (10) Glen Doil Woolf, the oral deposition of (11) Mr. Glen Doil Woolf, (12) two photographs of Knight’s Branch running under Maple Avenue, and a survey plat of Maple Avenue and Knight’s Branch.

Defendants City of Dallas and Luella Carver each filed a motion for summary judgment and both of such motions were sustained and judgment entered that plaintiffs take nothing. This appeal has been duly perfected by Mr. and Mrs. Woolf alone, they briefing here five points of error countered by three counterpoints. The points were, in substance, error in rendering summary judgment against appellant-plaintiff because (1) genuine issues of material facts were shown by the pleadings, the depositions and affidavits on file; (2) the evidence showed plaintiffs’ child was a tenant of defendant and disputed issues of fact were raised as to whether or not (a) defendant owed such child the duty under the particular circumstances, and (b) defendant was negligent, and (c) such negligence was a proximate cause of the death of the child; (3) because the trial court erred in rendering summary judgment for Luella Carver on the theory that plaintiff Woolf had failed to show liability under the attractive nuisance doctrine, this being a negligence case and it is shown that Carver owned and maintained the pool of water in which the child was drowned and the evidence raised issues as to creation, condition and maintenance of the pool by Carver, the existence of dangerous objects in the pool, her conduct with respect thereto, her knowledge that children would frequent the place, her knowledge that such condition involved unreasonable risk of danger to children and was unusually dangerous and that the cost of eliminating such danger was slight; (4) in rendering summary judgment against plaintiff “because genuine issues of fact were shown by the record herein and said defendant was not entitled to judgment as a matter of law.” (5) Because genuine issues of fact were shown to exist as to whether or not the pool of water where the child drowned was located on public property.

Defendant countered by three counterpoints, in substance, that affidavits of plaintiffs taken in connection with the deposition of plaintiff’s wife affirmatively show they had been in Dallas about four years and that while they lived in a trailer park within a city block of the pool, they had not seen it prior to their son’s drowning and were therefore incompetent as witnesses to testify that the pool in which their son drowned was not a part of the natural waterway of Knight’s Branch; that it had not remained in its approximate size and depth, but had become deeper from year to year for the past ten years because of the maintenance by the city of a drainage waterway which ran through a culvert or pipe under Maple Avenue and the court therefore on the hearing properly disregarded all those portions of plaintiffs’ affidavits ; (2) plaintiff showed no breach by the defendants of any duty to plaintiffs in that it was established without competent evidence to the contrary that Knight’s Branch is a natural creek or stream and that the pool in which plaintiffs’ son was drowned was formed by a natural part of its present condition, size and depth, for approximately 50 years without being affected by any act of either defendant which in any manner changed the course of the stream or the size or the depth of the pool; therefore defendants were entitled to judgment as a matter of law; (3) the affidavits of the city show in connection with the survey that the city had neither ownership nor control of any portion of Knight’s Branch at the point where plaintiffs’ son was drowned and no portion of Knight’s Branch at said point was located on public property, the edge of the pool being located *80 on private property 12 feet west of the Maple Avenue right-of-way line and the counter affidavits of appellants attempting to create a fact issue as to boundary line between Maple Avenue and the Carver property were without probative force because affiants were not and are not surveyors and the affidavits do not show appellants are competent to testify as to matters in such affidavits based on hearsay and mere conclusions of fact not admissible; therefore the trial court did not err in granting the city’s motion for summary judgment. All points will be considered together. They require a discussion of the material portions of the affidavits and exceptions before the trial court. Luella Carver, a defendant, in substance material here stated in her affidavit that she owns and operates the Inwood Trailer Park. The land on which it was located was purchased by her father in 1903 and she has owned an interest in the property since her mother’s death in 1940 and has lived within two blocks except for two years all her life in the vicinity of the property; that she acquired by purchase the interests of other heirs in 1945 and has been sole owner since then; that she is thoroughly familiar with the property, the stream of water, etc., and has been all her life. “The pool or pond of water in which Jackie Land Woolf is alleged to have drowned is a part of that natural stream or waterway and has been part of it, in its present size and depth, at least as far back as 1895 when I was born. The so-called pond or pool is merely a wide place in the said Knight’s Branch and, so far as I know, has always been there in its present size and condition. My brothers and sisters and I, as well as my children, and as well as all the other children in the neighborhood for the past sixty years have played and learned to swim in the said stream and the said pond. The property through which this stream passes has been owned by my family since 1903; and I know of no way I could effectively or lawfully remove or destroy the said stream or the said pond or pool of water or fence the same off in such manner as to keep children away from the water therein.”

Clarence Hudnall, Sr., by affidavit, in substance, stated he is 75 years old, was born and lived near what is now 5317 Maple Avenue, about a quarter of a mile from where Maple Avenue crosses over Knight’s Branch, is familiar with the stream which is below the bridge and of his own knowledge knows there has been no substantial change in the course, depth or size of the stream or the depth of the pond or pool just below the bridge during the last 56 years. It has been his observation that practically all natural streams have ponds or pools in them where due to different soil conditions there is natural erosion, and the pond or pool on Mrs.

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Bluebook (online)
311 S.W.2d 78, 1958 Tex. App. LEXIS 1838, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woolf-v-city-of-dallas-texapp-1958.