Klein v. City of Dallas

Collard, Judge. The charge of the court assumed that the streets were public streets and highways of the city, and based the charge upon that assumption. There was no error in omitting to instruct the jury positively as to the fact. Had there been anything wanting in the general charge in this respect, it was the duty of the plaintiff to have asked a special charge covering the point. The charter of the city of Dallas is very similar in its provisions to that of the city of Galveston, which was construed by the Supreme Court in the case of The City of Galveston v. Posnainsky, reported in the sixty-second Texas Reports, page 118. That case lays down the law of this State in relation to the liability of a municipal corporation acting under charter from' the State. It is there said “that when such a corporation accepts a charter, giving defined powers, the law imposes the duty of faithfully exercising them, and gives an action for misfeasance or neglect in this respect to any person who may be injured by such failure of duty.” The law was exhaustively considered and the conclusion of the court supported by numerous authorities and decisions, and there can be no occasion to add a word to what has been said upon the subject. The court instructed the jury to return a verdict for the defendant unless they found from the evidence that it constructed the sidewalk and the ditch. This was error. By its charter the city was given control of its streets, sidewalks, sewers and all things,usually appertaining to city supervision. Its ordinances recognized Pacific avenue as a street as well as the streets intersecting it. Under such circumstances it could not avoid responsibility for the neglected condition of the street, its sidewalks and drainage, whether it constructed them or not. If the sidewalk and sewer were dangerous to the traveling public, and remained so, the corporation was bound to change and repair them, and if it — 285 — neglected to do so, it would be answerable in damages to persons injured by such neglect under qualifications as to notice hereafter considered. The court also told the jury that plaintiff could not recover unless it had notice of the defective and dangerous condition of the sidewalk and ditch. This charge, given without qualification as it was, was erroneous. Had the circumstances of the case required notice, and had the charge informed the jury that defendant must have had actual or constructive notice, and explained what was meant by constructive notice, the instruction would have been correct. If the corporation, by the exercise of ordinary diligence would have discovered the defect in time to have made the needed repairs before the injury, it would be affected with the consequences of notice— it would be held to have had constructive notice. (Barnes v. Newton, 46 Iowa, 567; Cleveland v. St. Paul, 18 Minn., 279; Lindholm v. St. Paul, 19 Minn., 243.) Had the city itself constructed the sidewalk and ditch no notice of a visible defect, either actual or constructive, would have been necessary. (Rockwell v. Third Avenue R. R. Co., 64 Bar., 438.) The jury may infer notice (constructive) from the existence of other established facts. (Lindholm v. St. Paul, supra, Reed v. Northfield, 13 Pick., 94; Hume v. New York, 47 New York, 639; McLaughlin v. Corry, 77 Pennsylvania, 109; Goodno v. Oshkosh, 28 Wisconsin, 300; Springfield v. Doyle, 76 Illinois, 202.) But the question of notice must be left to the jury in all cases, whether, it be actual or constructive. What facts would be sufficient to put the corporation upon inquiry would depend upon a variety of conditions, the length of time the defect had existed, its notoriety, the frequency of travel over it and the character of the defect itself. Such facts would be admissible in evidence, to be considered and weighed by the jury. The existence of a dangerous sidewalk or street would not in any case of itself justify a legal presumption that it was known to the city authorities except where it is visible, and where the city had itself constructed the sidewalk and made the excavation or obstruction. The act of a wrong doer rendering usual travel dangerous, without knowledge, actual or constructive, on the part of corporate officers, would not create a liability on the part of the city. We offer no opinion upon the question of the sufficiency of — 286 — plaintiff’s evidence to show any defect in the sidewalk or ditch that would render the way dangerous to travel by night even on an unlighted street. We have intended merely to indicate the law that would govern the case if the dangerous defect should be established by sufficient proof. Our conclusion is that there was error in the charge of the court for which the case ought to be reversed and remanded for a new trial. jReversed and remanded. Opinion adopted April 24, 1888. Stayton, Chief Justice.