257 S.W. 238 | Tex. Comm'n App. | 1924
Max B. Sdhlegel, in this case, shed the city of Austin for damages growing out of personal injuries sustained by him in a fall from a fire hose wagon, alleging that the fall was occasioned by a jolt of the wagon as it ran over a hole in the street upon which it was proceeding to a fire. The general demurrer of the city to his petition was overruled 'by the trial court, as were the grounds of his motion for new trial to the effect that there was no evidence that the defect in the street was the cause of the injuries. Both actions of the trial court were sustained by the Court of Civil Appeals (228 S. W. 291), whose rulings in that respect constitute the grounds of the application for writ of error.
The city urges in the application that the general demurrer should have been sustained, (1) because the allegations of the petition showed that the driver of the wagon caused the injury, whereas the city was not responsible for his acts; (2) because, in any event, the negligence of the driver concurred with that of the < city as to the street, and, as it could not be determined which cause contributed more largely to the injury, or that, without the concurrence of both, the injury would have resulted, no liability was shown; (3) because Sehlegel was either a trespasser or a mere licensee upon the wagon ; and (4) because the use of the street by a rapidly moving fire wagon was an unusual use, for which the duty of the city with respect to its streets did not arise. In considering the force of these points, rule 17 for the district and county courts will be followed. It requires that in passing upon a general demurrer every reasonable intendment arising upon the pleading excepted to shall be indulged in favor of its sufficiency.
It appears to be well settled that for the acts of the driver of a fire truck, a municipal corporation is not liable. If the driver is not an employee of the municipality, this1 conclusion follows necessarily. If he is an employee, the fact that he is engaged in
The defendant’s third point is- that the petition properly construed, shows that the hose wagon was its property and the driver its employee, unauthorized to invite outsiders to ride on the wagon; and that therefore plaintiff, at the time alleged, was either a trespasser or at best a licensee, towards whom no duty was owed save that of the avoidance of intentional injury. It concedes, as is true, that the allegations are not to that effect, but states that a proper presumption from the provisions of the special act incorporating the city, which is expressly designated a “general act,” would show that the wagon was the property of the city and the driver in its employ.
The charter will be found in Sp. Laws Keg. Sess. 1909, pp. 8-15. Section • 15, art. 14, gives the city council “power by ordinance * * * to. provide for the prevention and extinguishment of fires, and to organize and establish fire companiés.” Section 9, art. 2, makes it the duty of the superintendent of police and public safety to “superintend the purchase of all property and apparatus needed or used by the fire department of the city,” and seetion 2, art. 2, gives to the city council “all executive, legislative and judicial powers and duties” at such time possessed and exercised by the various executive, judicial and administrative officers of the then city “except as to the fire department, which shall remain as now, a volunteer department, until changed by a vote of the people.” No presumption should be indulged against the petition, but all presumptions and inferences that are reasonable should be indulged, on this attack, in its favor. One cannot presume, from these relevant provisions of the charter, that at the time of the accident a vote of the people had changed the nature of the fire department from a voluntary to a municipal department, or that the city council had passed an ordinance to that effect or to the effect of providing for a municipal fire department additional to the volunteer department. Neither can there be a presumption that the time for the exercise of the duties of the superintendent had arrived. The only presumption that would seem to apply to the provisions of the charter, in the absence of allegations to the contrary, would be that of the continuation of the state of things there stated as existing, and saved. 10 R. C. L. 872.
The case, then, as alleged, is not one in which, without authority from an employer but through an unauthorized employee, the plaintiff was upon the vehicle, as in Mexi
Whether the defendant owed him any care as to the street is a related question, which is raised in its fourth point. It there avers that it owed him no duty because he and the conveyance were not making an ordinary and usual use of the street.
Fire fighting, upon the part of an inhabitant of a city, proceeds, at least partly, from motives of defending the lives and property of others and of defending the inhabitant’s own life and- property against a spreading or general conflagration. As progress is made from village to modern city life, the municipality, first recognizing and permitting, and later fostering, private fire fighting, and finally- assuming this necessary function itself, becomes in most cases primarily the agency of it. But the expression of the natural tendency of the inhabitants can never be entirely foregone; and in time of unusual calamity, when the city forces are not large enough to cope with the situation, aid from volunteers becomes, and always will become, indispensable. The need is always latent, as is the consequent propriety that inhabitants be present at the scene of the fire. Going to fires, then, is not only a customary, but a usual, thing, and one that under proper regulations perhaps should not be discouraged. The instance of a volunteer service and of the sounding of a loud alarm as in this case, under the allegations, emphasizes the point. Fires are frequent and usual in cities; and the only way successfully to quell them is for the fighters, whether regulars or volunteers, to proceed with sufficient men and apparatus,' speedily over streets and highways. The streets must be intended partly for that purpose. Analogies- and instances of less importance and clarity are abundant. Patton Worsham Drug Co. v. Drennan, 104 Tex. 62, 133 S. W. 871; Texas & P. Ry. Co. v. Rosedale St. Ry. Co., 64 Tex. 80, 53 Am. Rep. 739; Taylor v. Dunn, 80 Tex. 652, 16 S. W. 732; note 20 L. R. A. (N. S.) 748-754; 13 R. C. L. 374-376. In the case of Taylor v. Dunn, above cited, it is held that the obstruction of a street by a railroad was a rightful use, because consistent with the purpose “for which streets exist” and “necessary.” Ruling Case Law and the L. R. A. note, also above cited, are based upon many well-considered authorities, deciding that the duties of a municipal corporation as to its streets are owed a fireman speeding to a fire on a fire truck, even though he be an employee of the city. It seems clear, since the use that was being made in the case at bar was not only •necessary and one for which the streets were designed, but was also recognized by the charter and was usual and proper, that the street duties of the city of Austin extended to it.
None of the points made by defendant against the petition appear to be tenable, and no other reason is seen, by inspection of it, that would have justified the sustaining of the general demurrer. This conclusion makes it unnecessary to pass upon the question of whether the plaintiff would have appeared as an invitee on the hose wagon, had it been alleged to be the property and charge of the city, and on the question of whether the petition was aided by an allegation, of mixed law and fact, that the plaintiff, in substance, was ' “lawfully entitled” to be where he was at the time of' the accident, and that the city “owed him the duty” of reasonable care to have the street reasonably safe.
The other points made by the city are to the effect that the verdict of the jury in plaintiff’s favor is without evidence to support it. The contentions are that plaintiff got upon the wagon after it had passed the alleged hole in the street, and, hence, that the latter could not have caused the accident, that, had the facts been otherwise, there was no evidence that the hole caused the accident; and that, under the evidence, it was physically impossible, at the time plaintiff lost his footing, for the wagon to have' attained a momentum which, from the effects of dropping into the hole, was sufficient to have caused the jolt described by him.
There was evidence of some probative value that the wagon stopped, and that plaintiff boarded it, before a turn was made at the corner of Navasota and Twelfth streets, and that at this corner, and within the intersection of the streets — not only in Nava-sota street, but also in Navasota “out of Twelfth street” — was a hole about 18 inches in circumference and a foot deep, so situated as to be in front of the wagon when it
The evidence was not very satisfactory upon the question of whether this hole caused the jolt that made plaintiff fall. But there was some evidence. The occurrence was upon a dark night. There was, consequently, no < eyewitness. Plaintiff might have' been credited with detailing all the direct facts possible to be stated under the circumstances. A person living near the corner testified that the street was in usual condition, except for the hole, and that the latter was in the natural path of vehicles turning the corner. He said: “It was just in the way where the wheel of the wagon would run across it.” The defect had evidently been made by vehicles beating a rut into a buried, broken drain pipe. On a previous occasion the driver of the hose wagon had noticed a hole at this point that needed repair. Plaintiff testified that he had never seen this place in the street, but he was himself the owner of a horse-drawn vehicle, was an adult, had frequently been to fires on this and other fire apparatus, and testified that the wagon sustained the jolt that caused his fall “like it had run over a big hole.” In numerous instances he declared, both upon direct and cross-examination, that “the” hole in the street was the cause of the jolt. His testimony, it is true, could have been viewed below as a mere guess or surmise, but it also could have been considered as a substantial opinion. "If based upon observation and experience, opinions involving occurrences and effects which are of a common nature, and the details of which are naturally and necessarily indefinable, may be given by a nonexpert, and may be viewed as of great or little weight, as the circumstances may justify. Freeman v. Grashal (Tex. Civ. App.) 145 S. W. 695. Taken in connection with the testimony of the driver and of the other witness, and read in the light of all the testimony, the opinion of Schlegel presented some evidence that -the accident was caused by the hole at the corner oFNavasota and Twelfth streets.
The consideration of whether the wagon could have attained enough momentum to have caused the accident described by plaintiff, within the few feet it had to travel between the stop and the defect, is attended by indefinite factors, involving the weight and shape of the vehicle, the size and strength of the team, the slope of the street, the shape of the hole, the outward fqrce of turning the corner, and many other considerations of like ’ nature, and, in addition, the physical effect of a combination or concurrence . of some or all of them. Upon these there is no evidence; and there is no evidence that the accident would not have occurred as plaintiff claimed it did. It cannot be ■ confidently assumed that it was an impossible occurrence, even had one hind wheel of the vehicle been resting in the hole at the time of the stop. It would seem for these reasons that defendant’s final contention should be overruled.
We recommend that the judgments of the district court and of the Court of Civil Appeals be affirmed.