*1 AMERICAN PAN EL v. CITY PASO OF CO. SUPPLY

No. 4775. Appeals Waco. Texas. of Civil Court Dec. 1950. Rehearing on Denial of As Amended 1, 1951. March Brockmoller, City Atty., E. Asst.

H. White, Paso, Atty., ap- El for Travis pellant.

Andress, Lipscomb Peticolas, Paso, El & appellee. SUTTON, Justice. appeal judgment is an from a

This El County District Court of Paso 41st damages appellee awarding occa- by the running of surface water sioned in- of a store owned appellee operated dam- aged goods therein. stored submitted issues the the case an- which, opinion the trial

swers court, plaintiffs, ap- were favorable to the Pan Supply here. American pellee Compa- *2 by operated pack, and had time ny partnership owned to settle and so when is replaced E. A. son, and father A. V. Sanchez concrete was the dirt below would and in the plaintiff engaged is not recede therefrom The and leave it without Sanchez. support. pleaded El city The further business at 311 South affirma- retail hardware tively City of Paso. The there was large El hole the wall Paso Street El through previous- the chute the west side which the water building situated on is ly alley parallel percolated; had running that on each occasion it and an Paso Street inspected and had the basement the had and between hole El Paso South plaintiff alley paved its been called to the The attention Fe Santa Street. plaintiff’s suggestion and made length far as that it should be re- and so whole width paired keep plaintiff water concerned, alleged out and and it negligent repair it was failing traffic over maintained because negligence damage and but for such the water as take care of and well to occurred, would not have and such alley during rains. was through runs contributing damage. cause or cause of the there were During the summer plaintiff’s base- water into leaks of sm.all response In issue the plaintiff complained which ment about jury found there was hole in the no wall of coming water city suggesting the was acquitted plaintiff the chute and of con city. The sanitary sewer from tributory negligence. The answer thus reports two such and least city received at city’s point made is the basis for the first investigation. The many made an times as complaint, is, and which city cut a August early part of against' overwhelming weight of the pavement in the concrete in the hole great city evidence. The has with care and opened from the a chute that close to and ability, briefed this and has with plaintiff, which alley into the basement pains distinguished between the “no evi be, used, could to un- and been chute had dence” rule and “weight of evidence” alley in- from the materials goods load rule contended for. It would pur serve no purpose the ex- the basement. pose here to' review authorities cited pipes and sewer uncover was to cavation and discussed. There is in the was from the water if determine city’s Superintendent by the record of Wa leak- water was It was determined source. by supervisor Sewage; ter and its loose-jointed private service ing from Division; Sanitary by Storm Sewer three city’s with the connected line sewer crewmen job who worked on this that there alley. inference is line main there it had 'been called the dirt from made and were repairs some plaintiff, by the attention of as was claimed made returned the excavation positive There was to make removed concrete fill Sanchez, Senior, occurred, nothing like immediately re- excavation was no hole the wall there or for some 'been had not placed prior chute rain. The son likewise water that ac- came a rain days when positively testified there no there, way alley found its cumulated saying they each had run new concrete plaintiff’s into the excavation through years floor in the basement a prior few seems, occurred That basement. inspected had thereto for defects made point is disputed and not to be at that time and had had oppor numerous thereon. tunities to discover such a hole -had it been there and there was none there. replace em alleged the failure Five Plaintiff ployees employees former prox- concrete janitor The and one who sustained. had cause of worked in the imate purchase to the denying negligent, it was basement and occu city answered pancy customary prac- testified usual had had was the saying it opportunities many be in as one was a. a hole such leave tice replaced dirt the'conditions alley until the and'observe therein and or were street complain they had Points 5 the form the chute familiar with Special and in 1 was was claimed Issue No. submitted. hole such as never seen a jury had to The issue reads: being there. described as disregard way other and one find you preponderance “Do from find *3 they Why elected testimony to do so. some of the the evidence that the failure of not for this did is answer to make the replace City defendant of El Paso to the is conclusion determine. It our Court to the or hard the concrete surface over overwhelming against the is not answer by dug hole which had been them point may the weight of the 12, 1949, August the rain on about to be sustained. not negligence?” was specific complaint The is use of the the city negligent jury found the word “failure” in is comment on the issue a alley replacing concrete in the in the not implica- the evidence an and carries with it 2, rain, have points 3 and before the part city. tion of fault the Ob- of the finding, predicated on the do with that to jection urged was to the issue a support finding is without proposition the using issue submitted the words “action argued in this connec It is the evidence. replace waiting the to the concrete”. city negli the was there is no evidence tion We are unable to believe use the concrete, the gent replacing in not anywise prejudiced word failure the by city’s affirmatively established practice in- It is a well-established practice accepted to leave is quire a if believe there was open pavement if so a street a hole lookout, keep properly apply failure replaced tamp dirt before traffic will n brakes, proper place to furnish a safe and dirt applied, otherwise the pavement work,-etc., neg- if and then ask such were pavement and leave from the will recede replace ligence. The failure concrete by earth unsupported .beneath. admitted fact here. We think the is an brought dirt developed the fact the was city inquir- jury well understood the Court was that a the surface and level of to about ing about an omission rather than a fault. period of four daily over man returned settled; dirt as it days more complains to add city finally or five 'The day. inches each about two it settled permitting plain action of the Court carried into the testimony the dirt up There setting trial amendment tiff to file a This fine earth. expense claim for the cost of the extra in replaced the dirt up inference supports an after the condi curred to clean flooded ordinary not an This was fine and soft. the submission of such item on the tion and street, an formally but one in opening pre ground the claim was never basement; by city required chute into opening as is close to sented to the a charter percolated from' water had provision. this one from which One effective the basement. opening requires into area is the law never do contention testified, city’s while thing. witnesses a useless Plaintiff filed a ing One “sinkhole” discovered a damages he digging the occasioned water claim poked opened to some extent and the basement. is true entered It body into and looked portion goods of his described as right into basement. Small incurred in through it for cost of labor clean and not loose-jointed rejected, from a up. sew The claim was ing of iwater and we amounts way through the theory found its dirt the suit was er line take it defended on, liability made because it denied location therefor. from the presentation claim, city may all cir waive the of a think We basement. Thralls, city Tex.Civ.App., support City Waco v. an inference the cumstances r.), liability anticipate (e. and denial thing that S.W.2d foresee could consistently been held has the failure to do whatever occur did constitute replace waiver, g. in necessary generally, e. reasonably insurance cases. 292; p. Sec. Vol. promptly was concrete Ten. T.J. Year 6, p. 267, Sup. Vol. Sec. taken. not well unjust; manifestly in de- provision wrong many Charter cases cited. party all ciding this court considers complaining this required only merely the city of the and not evidence to the evidence apply suit shall he files his before Appellant compensa finding. has satisfaction, favorable to the redress, council “for length which cited the authorities at relief, may be” and show case as the tion or the rule is rule but I think refused. enmiciate this by the council that same was elementary of authorities fully that no citation Plaintiff, think, complied we support required re noted there no1 provision. It will be application show the quirement that his In verdict deciding whether or Certainly amount be if a amount. smaller rule court- should be set aside under presumed rejected it not be would *4 will credibility of witnes- does not consider the greater amount out growing allow so, do the witnesses ses. It not since can in absence It is the same transaction. said qualified not are not before it and it is of statutory requirement amount the of credibility. judge lim- their Its function is out, C.J.S., not be 63 damage the need set quantity the and ited to consideration of p. 365; 925(5), Municipal Corporations, § quality it can and fre- and the evidence of damages growing out of nor the of amount quality quently weight give more does tort, Brooklyn unliquidated damages. and quantity. quality on the of Passing than .to Y., App. City Library of N. Public v. always a difficult and trou- the 502(3); cit. N.Y.S. loc. Div. compro- nobe function. There blesome can Richmond, 502, 17 A. 917. Burdick v. R.I. testimony of the mise between the one of judg- the in conclude there error We no plaintiffs, Sanchez, and the witnesses A. V. the court the ment of and and actions Lozano, Umbenhauer, Price, Holguin and judgment is affirmed. witnesses' without Bracero. Each'of these equivocation presence the of testified as to Rehearing for On Motion recess or chute a hole at the base plaintiffs’ of PER CURIAM. the rear wall of the basement prior to the rain which did the given The full has careful consid- Court damage plaintiffs’ goods in their base- rehearing filed eration to the motion for ment, they complain, dig- of which and the should be herein and concluded same ging alley. of witnesses overruled. Umbenhauer, Holguin Price and also testi- McGILL, (concurring on motion pointed they fied that had out hole to Justice rehearing). for plaintiff this suggested that he have fixed, prevent seepage that would this When this case was submitted for which had occurred in the basement several thereafter weeks writer was ser- time of rain which caused the dam- iously ill and therefore did not hear the oral age complained plaintiff of. This categori- argument participate original or de- cally that there was such denied points cision. pre- Because of chief one pointed any any witnesses of appellant’s sented on rehearing motion for such to him. As hole out between this question involves a of fact as to which the and these witnesses largely jurisdiction final, this I of court is have question credibility. jury of necessar- very given careful consideration to the mo- ily must have believed that the testimony tion, of facts, have read the entire statement of A. V. Sanchez true and these parties, the briefs both motion false, they could reply five witnesses or not have rehearing thereto. can There question They No. 6 as did. only answered be but that this court not no credibility power passed duty plain- have on the has the but that its it is to set witnesses, stated, tiff and these and as it is finding aside to remand cause part pass of this court when of the function finding for another trial such is so credibility. weight preponderance quality As to the against on such carry the evidence of course A. V. as to conviction that party, uphold clearly Sanchez was an interested since the verdict would be $3,- negative something its different asserting claim over nature and against city. quality positive testimony witnesses above than the parties— other five that there was such named I think were interested witnesses also hole; if the If we were to act interested the extent that saw strength negligence digging their numerical was caused (without any regard jury’s finding, permitting it to re- causing credibility, uncovered, thus to which involves I be main should plaintiffs, my re- forced dissent a serious from in their such brethren them, especially set finding the witnesses decision that No. 6 should not be flection on Plowever, Umbenhauer, Superintendent of the Water aside. I think that this court Department, Price, Appellant urges a Su- so limited. Sewerage also physical clearly point pervisor Sanitary Storm Sewer and to the exist- rain; Department Wa- Division of ence of the before the Sewer Sewerage suppose ter of El Paso. unreasonable to that the accumula- alley with certainly It been a reflection on water in the would have tion of capability admittedly the the ability their their hold dirt that in such hole positions enough pressure could exert wall did hold a rock *5 push in, interest of the wit- may though same said of the it in or wash even be testimony Lozano, appellant’s foreman in this ness who' was a of witness Umben- pressure Certainly was interested hauer caused as the maximum kind work. assigned disregarded. to him I performing the work the water the hole be in not therefore, although manner; physical do not think that negligent degree quality clearly there is before rain that a difference in evidence, disposed yet I that these wit- case be basis. think should on this testimony certain nesses interested to a extent. There is abundant were think, ap- seeped quality, A I into the rule as to rain water had different basement testimony quite plicable E. A. it seems reasonable me that an Flood, Garcia, accumulation water outside of the rock Sanchez and the witnesses ap- wall, though may Meraz, Martinez, earth, and Neva. It even mixed with Sedino seepage through pears plaintiff E. A. Sanchez was have caused a the mortar wall, gradually present started a flood and when the witnesses Umben- of hauer, in a I testified resulted washout. have noted Price Lozano pointed fact there is plaintiff A. interest the V. San- out pieces large hav- any as rock rock fixed, chez ac- him to have advised ing in the discovered basement after been testimony. cording to their rain. of the witnesses above than that Although grave no more I entertain named doubt wheth- amounts light jury’s evidence prior er in the of all the numerous times were in per- No. 6 should be digging of the rain and stand, I every opportunity to the mitted to resolve doubt favor observe alley, had judgment accord of the build- court’s in the rear wall or chute recess my brethren if with the views and concur base thereof ing and see appellant’s overruling motion for a re- such a there been hearing. such hole. not see did