*1 City of Austin v. Sarah Daniels.

No. A-7315. Decided 1960. April Rehearing Overruled June (335 753) S.W. 2d Series *2 Doren Eskew, Attorney, R. Taylor, Jr., C. J. Thomas Hunter, R. City Attorney, petitioner, City Assistants Austin. The refusing Court Civil erred in to hold that regulation parking

the governmental upon public and traffic is a affirming and in the action of the trial submitting special court in issues as to whether the failure to place warning pedestrians negli- devices to in the street was gence. City, 333; Parsons v. Texas Stinnett v. Waco, 433; 180 S.W. 2d of Galveston v. Dazet, 19 S.W. Will Mitchell, Austin, Cowan and Arthur respon- both of dent, Sarah Daniels. delivered the

Mr. Court. Justice Greenhill brought against Sarah Daniels city alleging this suit injured that paint slipped she was when she and fell on some wet paint freshly in the street. put The had been down employees parking to indicate the area for adjacent of cars parking to the curb and a judg- meter. The trial court entered jury’s ment for Sarah Daniels based verdict. That judgment Appeals. was affirmed the Court of Civil judgments 2d 384. here affirm the below. We areas set aside for desig- automobiles were painted lines. The lines had nated become worn. Under the city employees, they appropriate just had direction been devices, signs, warning' or other methods of repainted. No paint. paint the wet to call attention While used testimony length fast-drying variety, varied as to the dry. upper painted time it took to surface of the line dried gave paint’s appearance first. This crust being dry. the line the designated spaces. parked Daniels her car in one Sarah car, got away curb, out of the left side of her She from deposit a coin in the meter. In so walked around to injured doing, slipped the'paint herself. From her she clothes, ample testimony paint her there is evi- bn finding jury’s that she did fall down dence to paint. wet city’s employees jury found that the acts of the con-

placing the on the street under the circumstances dangerous negligence; *3 a their acts condi- stituted created street; dangerous condition hidden and the that the was tion Daniels; placing plaintiff, that the of the concealed from Sarah all the circumstances rendered this on the street under reasonably portion a condition that was not safe of the on the a hazardous and unsafe condition street. and created negligence proximate a acts was found to be Each of these injuries. jury further found Daniels’ cause of Sarah neg- warning signs also place any or devices failure to the ligence the inci- proximate found that and a cause. Daniels and that an accident Sarah dent was not unavoidable negligent. contributorily was not 1,2 questions these circumstances arise from The law which acting governmental a complicated and difficult. are When damages its em- for torts of capacity, is not liable gener- regulation is of traffic conceded that

ployees.1 It is here of governmental and that the function control ally a held to be regulation traffic.2 part of to be been held parking has proprie- is hand, of streets a the maintenance theOn other performance Negligence of this function tary function. City injuries. Houston liable renders (writ refused, 1937) George, where 929 S.W. 2d 108 of Fort Worth 1.— city garbage a injured which she truck was driven into fence plaintiff when standing. (writ refused, 1955), Woodlock, where 736 2d Abilene 2.— street, regulation parking along was a prohibited it was held that the. Falls, power. Harper police Wichita exercise of reasonable power refused, 1937), upholding (writ of the install and regulation bearing relationship operate to1 meters reasonable Operation A.L.R. 2d 761: Installation annotation See traffic. liability. immunity from tort within meters as Shilling, 26 A.L.R. Texas 240 Schmedes, ; City (1951) Austin v. duty is under And Á.L.R. reasonably safe This func- maintain the streets condition. proprietary. Galves- tion has likewise been classified as Posnainsky, (1884) ton v. .3 62 Texas 118 problems negli- (1) here then are is there evidence gence city? part question on the That will discussed Assuming ngligence, (2) later herein. law what where has breached its to maintain the streets in reason- ably performed are safe condition when the acts also connected regulating (3) with the function of traffic? Is finding any jury’s there fall evidence that the injuries for she Sarah Daniels caused the damages? which was awarded question This will likewise be discussed later herein. cases in cities have held Some been liable for reasonably to maintain streets or sidewalks others,

*4 safe have condition involved obstructions.4 In writing 3.—In the Posnainsk Justice set out opinion, Stayton basis distinction between and proprietary functions, particularly as to streets: proper of its officers agencies, When it without that no action more * * * municipal easily consent, .” should ^[62] corporation effectively Texas at 125. simply maintained because the state discharge acting against duties purely public essentially it for can thus, through its negligence character own, such local “forced is but * * * * * * that, “It would seem in so far as municipal corporations exercise pertaining conferred on them for powers purposes essentially public purposes — general general to the administration laws made to enforce policy of the agencies subjct state, they should be deemed of the state, and not to be sued — that, in sovereignty, * * *; reference such matters, should stand they as does * * agents whose are *. they locality private tarily should be relieved from that graph (3rd ed.) 190, section 53.23. “In is used assumed — corporation and its so far, by McQuillin powers however, inhabitants, ^[*] * * intended as would as the law. 19 McQuillin on Municipal Corporations —there they liability be liable.” for exercise seems the private to suit powers 62 Texas 127. This last quoted para- be * * * no sufficient advantage this character, and benefit of reason why they an individual volun- or tion, reasonable McQuillin For see ^[63] on care to maintain C.J.S. 88 general Municipal proposition and Corporations 114, Municipal its streets that ^[12] and sidewalks city is required and Corporations, 77, sections in a reasonably ^[19] sections 782 and 802; to exercise ordinary 55.02 and 54.17. safe condi- or plaintiff’s 4. where —E.g., it a tree ^[134] is not sidewalk. (Texas stump improbable Shuford Comm. in an v. App., area outside of the City injury 1931); Dallas, leaving occur. City of Waco v. Darnell, ^[144] traveled a pile of dirt Texas 342, 190 S.W. 2d 721 portion of the at the end of highway ^[35] negligence leaving in

the cities been held liable for their have unguarded openings or in streets or sidewalks.5 holes jurisdictions In cities have held liable for allow- been other sidewalks, ing- ice and remain on the and as- snow to streets suming negligence under all the facts and circumstances.6 City App., Diamond, In Waco v. Com. getting (1933), plaintiff slipped after off a street- on ice recognized duty to car. The Texas Commission of keep reasonably, safe condition but reversed the streets (an because, un- the facts and circumstances under all case snow) no precedented there was evidence freeze and a 15-inch city. negligence part on the Dlgado Billerica, v. Town Mass. 82 N.E. And in injuries for caused when 2d the car was held liable freshly ap- plaintiff riding slipped in which oil sign given warning plied to a where no or other in the street.7 the unsafe condition dealing we From these cases with regulation dealing traffic which have with the turn to those lights signal governmental. were out of been held order, i.e., Where got green light from all four directions traffic resulted, liability denied.8 Simi- has been a collision larly, absolved of the cities have been signals operate all traffic install a central switch to making emergency runs.9 police vehicles paths of fire or liability.” not discuss 15) A.L.R. 7.—There on because there 8. car; its failure guarded where of Grandview the street. Gabbert 62 Texas 118 collided 5. jured selves were 9. Stanton, —Parson v. Texas —E.g., —“A —Baker v. Baker, its streets but Presley where plaintiff municipal with drain 262 S.W. injuries announces to use the care city employees City a firetruck which ran C.J.S. (1884); was no invasion at 787 and 788. statute broke her duty City inherently Ingle, corporation may received gutter 2d 952 sidewalks, City, Waco, involved where 90 S.W. 2d 855 maintain Odessa, Municipal common ankle next ^[259] (no when the required ^[129] dangerous. negligently (writ plaintiff S.W. writ, except Brownwood, stepping S.W. law streets. the sidewalk. property dismissed, 1953). Corporations, of it a 2d 499 SW. to the extent Delgado plaintiff’s fell ^[333] red liable To (writ dismissed, failed to in a hole into an It 2d 293 light. *5 (writ 176 S.W. 2d (no rights connection rejects 1936); subject same effect minor writ, refused, replace injuries section 811. (no unguarded (G. plaintiff’s and where the street. of Galveston 1939), as followed writ, daughter L. because with 1936). statutes 1953). incurred (Ter. is Burchett slab collision with a 1952) (writ water, theory See over a ditch. Ed.) That fell plaintiff exempt open refused, where Annotation snow, signals c. of Beaumont Texas. opinion into Posnainsky, a result v. culvert nuisance plaintiff it City an un- section 1943); them police does in- ice 1952, 20, City Jackson, Johnson v. 194 Tenn. govern- a of two combination 33 A.L.R. 2d involved policeman, a denied. There functions and was mental checking meters, riding motorcycle ran over a plaintiff. demurrer was sustained. and the traffic

Each of these cases involved the direction governmental not in- and did a use of the street for of the street itself. volve condition use of the

There a of cases where have been number governmental proprietary purpose a with has combined maintaining City Port properly In function of the streets. (1943), a Wallace, Arthur S.W. 2d in the street path of holes firetruck swerved out of its because recognized city plaintiff. acted and struck the The court operating a capacity a the firetruck a rea- proprietary capacity streets in to maintain the sonably the defect It held that safe condition. was where injury, produce street combines with other causes to city was liable.10 among approval,

The Port Arthur-W allace case cited with others, City Schlegel, (Texas two cases. The first is Austin v. of There firetruck, way App., 1924) a on Comm. got fire, up He pick to a bumped a volunteer. slowed down civilian hit in the street.

off the truck when it a hole Austin, Kling v. was held liable. The second case (no writ, 1933). fire allowed 2d 689 There filling driveway It was hydrant station. remain in night. Judge wrote: by plaintiff’s at McClendon there struck car of this precise question here is “The whether breach un- where the maintain is rendered nonactionable streets] [to improper location either the condition caused safe prop- instrumentality or the failure to function guard reasonably instrumentality erly as to render so such safe.”11 Wolverton, opinion Houston allace is followed Port Arthur-W 10. —The 154 Texas on operated employee car There a accident, task, checking At the time of the and dairies. milk way garage checking

however, to a and was his had finished with his he inspected repaired, get under function car to Houston v. Shilling, supra. liable. It held that quoted Kling language this Court’s 11.—The above Antonio, at 630 301 S.W. 2d of San in Crow Kling (1957) case. which follows *6 634 Kling duty It was held in the the case that “the to maintain safety obligation” impose

reasonable of the streets would the guard against to use reasonable means to the hazard. The was held liable.12 regulation The of function traffic merged function of maintenance of the streets also in Crow v. Antonio, San of protect crossing There, street, school children a a rope fireman had stretched a across a Its street. function was away crossing. plaintiff, to direct traffic from the school The riding motorcycle, rope injured. a failed to see the and was rope nothing Court of Civil held that the had do gov- streets;

with of maintenance that it was there in the regulating ernmental function traffic. 294 2d 899. This judgment Court reversed and rendered the of the Court of Civil Citing Appeals. out, the cases it above set was held that the duty reasonably owed the to maintain its streets in a safe condi- duty though travel, tion for and that the existed even exercising atwas the same time a function.13 point, standpoint physical nearest case from the Cleary City facts, is that York, New N.Y.S. (1944).14 plaintiff slipped paint put There, here, as in wet negli- down on a lane. The traffic found that the gent plaintiff contributory negligence. and absolved the It regulation governmental, was the that while the of traffic was held duty nevertheless owed the maintain the surface reasonably distinguished a the street in safe condition. court city, a York case which a occurred when the New collision exercising negligently a allowed traffic lights green to show in all four directions. dealing slippery This is the first case this Court with deliberately by city. put substance the surface of street Kling Cleveland, Augusta 12. —Cited in the 345, case is 98 SE Ga. plaintiff open sanitary leading an where fell into in a governmental, hole was in a sidewalk Conceding system sewer. sewer nevertheless reasonably owed the 13.—The to maintain the sidewalks safe condition. points up holding Crow dissent these considerations: is nuisance; any itself; not based on is not on obstacle in the based rope nothing repairing do with street. had is, course, binding 14.—The on this lower on decision court of New York court, persuasive. reasoning gen but its is York New has statute subject applicable eliminating governmental immunity, eral opinion to the state but being applicable neither mentions nor relies on it as Ct. of Claims cities. Act, independent reasoning sections 8 and a. The reasoning statute. The same result is reached Kamnitzer v. of New Apt). plaintiff Div. ran into a York. signal pole N.Y.S. 2d where traffic portion which was bent and extended out into the traveled of a street. or hazard Nevertheless, the defect proved, if obstacle, hole, may as an just as a condition created serious certainly It rope the street. or a stretched across *7 street, the dangerous negligently remain on allowed to as ice in many If firetrucks liability the in states. which follows Austin-Schlegel had cases skid- Port the the Arthur-Wallace or placed the street in paint in or in their course fresh oil ded off a street, city by hole in the negligent of the instead manner different? would the result have been bring rule stated think facts within the the here the case We Jurisprudence in 25 American 651: weight authority supported

“The rule is and the of principles seems be with is to more consistent fundamental liability resulting injuries that from defective streets nublic public ways predicated upon or other resulting unsafe conditions be by public in

from acts done the exercise officers power performance police duties or the of * ** chargeable neg- responsible where the ligence are with authorities * * * Am. .” 25 Jur. section 358. correctly hold that that the courts held the We below was not immune from suit and the facts under negligence. case, asuuming circumstances of this (cid:127) negligence part question the We turn now the on of of city. jury placing employees the The found that the act the paint place the on the street under the circumstances and at time assignment question negligence. was is There no finding support here there error that is no evidence to jury. jury the the em- The further found that acts of paint upon ployees putting all the cir- wet street under upon the cumstances created hazardous and unsafe condition street, negligence. There no that such acts constituted assignment support to' no evidence of error here that was there findings. these assignments there was no error that

The does have findings jury support that evidence warning signs negligent place or devices Dunham, city’s regard, employee, testi- paint. In that wet began dry crust the outside paint that fied person inexperienced tell could it. An formed top painting dry. foreman of The paint was wet whether flares, barricades, or cones did use testified that crew street, lights, stop at stripes center of the in the painting when placed protect paint and crosswalks. These were there to people wet, slippery and to warn slippery condition. applied. person slip when He on it he said would if hung signs watch.” had “wouldn’t which could be they paint, on the meters to of fresh but warn city argues place not used here. cones the street would create a Certainly hazard as well as warn one. freshly painted hazard from the of cones use to warn greater lines would no than their that caused use places jury It other street. would for the to decide ordinary required whether care their use. think there We jury’s finding some evidence of failure to warn. point 5 The fourth the trial court erred in sub- mitting regarding the issue to the creation dan- gerous condition' in the street because the condition “was too trivial for minds of men to differ” reasonable whether *8 could be foreseen that an accident would occur. The made objection no such point in the issue the trial court. The summary not judgment, made in motion for in its motion for judgment notwithstanding verdict, or in its motion for new trial. There no motion for an point instructed verdict. The by for the raised first time to its brief amendment in the Appeals opinion of Civil Court after the 485, in San Antonio Chabot, App., refused, 318 S.W. Texas writ Civ. question no error. preserved. reversible The was therefore P., Texas R. Civ. Rule 374. 6 The contends that there no evidence to sustain the finding injured by of the that Sarah Daniels was the fall injuries or that her were caused In addition her fall. testimony bleeding, pain area, pelvic in back and and a earnings, question loss of Dr. fall Todaro testified that vaginal disability, bleeding bruises, caused her her and that fall, injury sprains from the bone caused her concerning injury will continue the future. Other facts her and Appeals, are set out in the condition of the Court of Civil point at 389. is overruled. Finally, jury’s $5,000 contends award of was excessive as a matter of law. There is no contention wrong damages legal the courts below used the measure of or question test to determine excessiveness. No remittitur is in- pass jurisdiction volved. therefore are without unon the We Ross, Ry. point. 447, Schmidt, Terminal Port Ass’n ; Beaumont, Ry. (1956) at 226 S.L. & W. 123 Texas judgments of the courts below are affirmed.

Opinion April delivered Norvell, Griffin, joined Mr. Justice Justices Culver dissenting. Hamilton, Daniels, respondent, injured when she fell Sarah was paint stepping upon as a result employees fresh which the placed upon Austin had of a street surface parking space adjacent parking order to mark a to a A meter. question urged serious as of the evidential jury’s findings, regardless city’s employees but of whether negligent using particular paint, type employed by applying methods paint, them in or in give warning proper presence paint upon street, injuries should not be held sus- liable by respondent tained maintaining parking because the parking spaces meters and incidental by painted marked off lines upon acting the surface of the street was distinguished proprietary capacity from a and hence was liability. immune from tort Posnainsky, of Galveston v. example 118. The municipality’s acting classic aof governmental capacity is the enactment and enforcement police regulation. of a In when meters were some- thing novelty, the Fort Court Worth of Civil Harper Falls, of Wichita 105 S.W. 2d decided that the erection and maintenance of meters streets police power. was an exercise of the This Court refused writ *9 of error in the case and it is of interest that note the ordi- provisions upheld designation nance there contained for “the spaces parking of operation for of vehicles and for the installation and meters, spaces parking such to be indicated painted upon lines the parking the street within the surface of zone; parking placed upon meter jacent the meters to be the curb ad- alongside individually spaces to and marked to be indicating identified, signal and with devises whether or not the parking space is then in use.” 105 2d 746. controlling paragraph

The above states the facts and the law my disposition I which mind should the of this case. control judgments would reverse the of the trial court and the Court Appeals judgment and render the of Austin. Civil Appeals majority However to the and a Court Civil Court, simple injury present this the does record case of governmental powers. On from the exercise of a injury contrary respondent her is

the the held liable containing pages. many As I complicated opinions in rather opinion, primary its hold- understand the Court of Civil — ing nuisance, upon theory that the is the based that placing in the manner effect found “that of the' put a nuisance.” jt was down created argues respondent city’s em- reply that the her brief along per- ployees painting parking were lines the street forming governmental, proprietary rather than a function. accepted

This Court as a neither of these theories basis say only incidentally its decision and I shall notice them simply that my opinion nuisance this is not a case along city’s employees painting parking lines the street carrying proprietary than a out rather According opinion, majority the decision to function. to the upon judgments of the courts based affirm below duty keep theory its streets its breached theory easily reasonably stated safe condition. While general attempted appli- application, undoubtedly is one difficulties. cation to the facts of this raises formidable These, I discuss. would — Court, single adopted by act

Under the thesis marking parking spaces upon street —consti- surface of the function with conse- of a both exercise tutes liability, immunity and the breach auent damages. not with renders the liable Could negligent logic fire truck equal said that putting the same in out street while firemen made use of house, liable to Mr. render in Mr. would fire Brown’s rushing damages upon fire-threatened when to his Brown house, the street and truck which blocked he collided with fire travelling public? same unsafe for use We rendered the granting immunity time and at the same seemingly have the law legal taking proposi- away. immunity a sound This cannot be upon and lines mark- Parking sidewalks meters are located tion. spaces streets, upon result of placed and the ing are destroy municipal im- is to this Court the rule accented contrary usually activities munity attendant *10 policy. long-established public to policy in wisdom of this purpose my to debate not It is conditions, other than to present-day under times

modern governmental say policy and that the doctrine that the exists recognized repeatedly by immunity the courts this has been longer obtain, repudi- state.1 If no it should be the doctrine to outright, preferably, judicial precedents, in view of our ated legislative action, destroyed rather or constitutional than be nibblings. piecemeal by repeated judicial apparent

There are some rather distinctions the au between upon by thorities relied to affirm the Court order of briefly. First, ance which alluded to this is not a case be engaged carrying wherein the proprietary out a servants negligently proper function and re failed to make involving pairs Secondly, to the street. this is not case unre paired paving Thirdly, holes in the street or surfaces. breaks remaining this is not a case of erected and left obstructions period the street for some considerable of time. In order to make applicable majority opinion, certain authorities cited in the it is necessary ignore logical presence their is the basis which negligence, days some element over and above mere and reduce again emphasize hours to minutes and seconds. I would that, essence, very act, painting this is a in which — Stripes upon pursuance governmental the street in aof function proprietary duty is held to abe breach of maintain safe Wallace, 201, street. In of Port Arthur v. 480, chugholes placed 2d the street were not therein Kling in the exercise of a In function. City Austin, App., 689, Texas Civ. 2d an obstruc standing driveway tion was erected and left in violation ways. to maintain safe and useable traffic The ob plug furnishing protection was a struction fire of fire However, easily is a function. case can expressions relating authoritative reconciled with law the doctrine of .nuisance. than mere More was in Posnainsky, 118, 6701-d, 13, of Galveston v. Texas Article sections 1.— Stats., Harper Falls, 18 and Vernon’s Ann. Texas of Wichita App., ref., City, Texas wr. Parson Civ. Texas App., ref., Waco, wr. Baker Civ. App., 259 S.W. Texas Civ. hist., McQuillin, Municipal Corporations, no writ section that,- exempting municipal corporation 53.24 wherein it is said “The doctrine private performance action for torts from the of its functions, indicated, steadily judicial decisions, adhered the most recent as above undertaking promote is based the familiar reason that not private municipality corporate entity, the public benefit, interests of as a but rather for the performance obligation municipality of such is a mere public agent, community. reason, either of the state or of the local as often expressed, public policy, protect public public property. is one of funds and specific governmental purposes; and, they ‘Taxes are raised for certain if could payment damage claims, important be diverted to the government, the more work of every municipality perform regardless must of its other rela ” * * tions, seriously impaired totally destroyed if would *.’ *11 volved, dangerous but a persisting situation was created and by an act affirmative of of the and no measures servants were taken to correct the condition. To return to the fire truck gouged fighting illustration: firemen in a fire Had the course of pavement out holes in the which left unfilled street unrepaired municipal subsequent injury, and to someone’s lia bility remedy probably predicated upon could the failure to dangerous Kling a as situation case in Austin. Crow v. City Antonio, 628, of a San 2d street Texas case, presents obstruction a the Texas similar situation. of None municipal by proposition cases cited the Court immunity disappears taken ren when the action period portion slipper ders a small a street for brief says that, of time.2 “This the first case deliberately this Court put upon dealing slippery Court awith substance by “deliberately” city.” the surface street word evidently deliberately liability used asserted to fend off future grease gar cars, police and because bage conveyances oil and from fire trucks streets, upon

dripping dropping rendering But, logically, a distinc slippery. them slick and can paint deliberately applied tion be drawn with a between lubricating grease and oil or which flows onto brush carelessly police from a car? serviced something clarity There the law re- be said for legal cognizable liability. doc- demarcations of Extensions judicial uncertainty by bringing trines often construction opinion recognize majority confusion their wake. While I legal closely ably pronouncement, I as a written reasoned departure law nevertheless constitutes feel immunity municipal for this reference to tort state with Shilling, City actions. While Houston v. 935, pre- 387, 397, 1010, 1016, 26 2d L.R.A. Texas case now situation from the different sented somewhat factual warning us, in Mr. Justice contained feel that I before applicable Smedley’s here: dissent is diligence in research. for their for sides are be commended 2.—Counsel The both respondent produced City judge an written trial oninion has Bronx, York, County overruling a motion set New Court aside Cleary York, 2d 456. This 47 N.Y.S. New verdict. only respondent’s supports position in existence well be the one petitioner York, 294 N.Y. cites of New so. The in turn Bernardine does 364, by muni- show that 161 A.L.R. the Court N.E. immunity cipal and the New York State of has boon waived statute However, Cleary much well this waiver. have based decision in could been Cleary point. my argument mind the law To as to New York is beside of decision is persuasive. municipal immunity for If the doctrine of legislative abandoned, example of action New York acts is to be limited or may well be considered. “This it in Court should was said remember what of Port Wallace, Arthur 141 referring Court, 481. There rule negligence discharging func- discharg- nonliability tions and the rule as to ing *12 governmental functions, ‘the rule of said: non-liability one function and in this State is so well established other that, change made, it be made if be should legislature and not the courts/ “The proprietary, whether or in- include, parts cludes and should held all the elements longer of the function. Unless it is held will no be a well so there proprietary defined distinction func- between principal majority tions. The vice in the decision opens way long principle to the destruction of a established by taking apart lawof heretofore well settled seeking something part functions and to find in some seem to nature/’ respectfully

I dissent.

Opinion April delivered