Schumm v. Anderson

CARL, J. Appellee, Charley Anderson, sued appellant, Chas. Schumm, and the city of San Antonio, for damages on account of personal injuries received by him from falling into an open ditch on Soledad street, near Travis street, in the city of San Antonio. Appellant was a contractor with the city in digging the ditch. It is alleged that the said contractor and the city were negligent in leaving the deep ditch open without being'fenced and properly guarded, by lights, and that, on account of such negligence, ap-pellee, Anderson, fell into said ditch and received serious and permanent personal injuries. The court, before whom the case was tried without a jury, gave judgment against appellant and the city of San Antonio in the sum of $750, and judgment in favor of the city over against Schumjn for the same amount. Schumm alone has appealed. [1] The first, third, fourth, and fifth assignments question the correctness of the judgment on the ground that appellee’s injuries were the result of his own negligence. It is claimed in these assignments that the “preponderance” of the evidence shows that plainüff’s injuries were sustained through his own negligence. In matters of this kind, where the evidence has been heard by a jury or by the court, this court is not permitted to inquire into whether there is a “preponderance” of the testimony one way or the other, but only whether there is sufficient evidence to support the finding of the jury of court. [2] Appellant offered rather strong testimony to the effect that appellee, Anderson, knew the ditch was open, talked to other men about it, and that proper lights were there to guard it; also that Anderson was drinking. We may even say that appellant made rather a strong case of carelessness and contributory negligence against Anderson. However, there was equally strong and cogent testimony on the other side. Appellee testified that he did not know the ditch was there at all that night; that his eyesight was not very good; and that there were no fences, barriers, or lights at that place, and it was dark, and he walked straight into the ditch without knowing that it was there. He says he knew there was a ditch on Travis street, but did not know they had been digging on Soledad street for a week. Miss Bertha Edwards testified that: “There was absolutely no fence or barrier around that ditch. * * * No, sir; I did not see any red lights on that particular corner. I am not a good judge of distance, but the closest [1122] light was about the length of this room (courtroom) from there.” E. H. Wagner said: “I didn’t see any lights on the hole he fell in. * * * I didn’t see any fence or barriers on the side next to the car track.” He said, on cross-examination: “I noticed a light on the hole next to the one where the accident happened, and X made the remark: ‘It’s funny there was a light on every hole except the one he fell in.’ ” Mr. A. W. Boazman said he was returning from the First Baptist Church to his place of business on Soledad street, and he noticed that there were no lights on some of the holes on Travis street, and he went to the corner to get a policeman to have him 'attend to the matter, and when he got back appellee had fallen into the hole. He said there were no lights on the hole appellee fell into. The nearest light he saw was 30 feet away. These were all disinterested witnesses who attended the trial in obedience to subpoenas. Mr. Boazman says Anderson impressed him as being perfectly sober. The court found against appellant on the whole testimony, and found that appellee was not guilty of contributory negligence. And where there is as much evidence to sustain the findings of the court as there is in this case, even though this court were otherwise disposed to do, we have no authority to disturb those findings. These assignments are overruled. In the second assignment it is asserted that the preponderance of the testimony shows that the plaintiff sustained his injuries through his own negligence, and that he vwas intoxicated, and deliberately and wantonly sat down next to the excavation and intentionally slid down into the same. Dr. Q. B. Lea and others testified that appel-lee was not drunk, while some, who are probably well qualified to know when a man is drunk, said he was intoxicated. In this state of the evidence, the trial court’s finding is final. The assignment is overruled. The judgment is in all things affirmed.