69 S.W.2d 460 | Tex. App. | 1934
The appeal is from a judgment in favor of appellee against appellant for damages for personal injuries. At the time appellee sustained her injuries she was walking along a sidewalk on St. Mary's street in the city of San Antonio, and was caused to fall by stepping into a hole, or depression, about three inches deep in front of a garage which appellant was operating as the tenant of J. M. Nix. Neither the city nor the owner of the building was made a party defendant; the contest being alone between the appellee and the tenant. In some unexplained manner an abrasion was made on the concrete sidewalk before appellant became the tenant of the building and, by the action of cars in passing over it upon entering and departing from his place of business, the hole, or depression, was made deeper during the few months of his occupancy prior to the injury. The jury found that appellant's operation of the garage and use of the drive-in-way in question directly caused or contributed to the hole or depression, and convicted him of negligence in the following particulars: (1) In causing this condition to exist; (2) in permitting this condition to exist; and (3) in failing to have the hole or depression repaired before the accident. In due time, appellant requested the court to peremptorily instruct a verdict in his favor, and the failure of the court to do so is made the basis of the first assignment of error.
The Star Garage, operated by appellant, abutted upon St. Mary's street. In order for customers to enter and depart from the garage, it was necessary for them to drive over the sidewalk. No question is presented that the drive-in-way did not in all respects conform to the requirements of the city, if any it had. Liability was not predicated upon any statute or any ordinance, but solely upon the common law. The theory, as disclosed by appellee's brief, seems to be that appellant was enjoying some kind of special privilege in the sidewalk by using same as an integral part of his business, for which reason the duty devolved upon him, as the proprietor of the business, to keep the sidewalk in repair. There is not found in the record any evidence whatever that appellant conducted any business on the sidewalk; that he, by any affirmative act, or otherwise, made this depression therein, or caused the one existing when he became the tenant to be made deeper, but only that his customers caused same to be made deeper by driving their automobiles over it.
It would scarcely seem necessary to cite authorities in support of the proposition that sidewalks are a part of the street, that the duty to exercise ordinary care to maintain them in a reasonably safe condition for the use of the public rests upon the city, and that an abutting owner owes no duty in that regard. City of San Antonio v. Wildenstein,
The liability of appellant is not different from that which would have existed had appellee been injured by a depression, not in the sidewalk, but in the street. In the case of Noonan v. City of Stillwater,
In its last analysis, the judgment in the instant case can be upheld alone upon the ground that it is the duty of abutting owners, and likewise of their lessees, to repair the public thoroughfares adjoining their premises. That duty does not exist, but rests exclusively on the municipality, and where there is no duty there can be no negligence.
Appellee relies upon Kampmann v. Rothwell,
We can see no reason for remanding this cause for another trial. The case presents only a question of substantive law, and there *463 is no indication that the facts were not fully developed upon the trial. It is accordingly our order that the judgment of the trial court be reversed, and that judgment be here rendered that appellee take nothing by her suit.