Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-03-29
CIVIL COURT OF APPEALS.
Fun. Report Of Decisions Rendered BY me
corrl for ne Second District

No. III rhe city OF penison, appellant
Va Mary y. sanford. appellee Appeal
nom Grayson county district court.
CONCLUSIONS OF FACT
Appellant IS a city Of over 1000 inhabi-
tante incorporated under the general laws
Of this state applicable TO such cities.
Candy street and Houston avenue are
pablo streets OF eUid city. recognized and
adopted as such. These streets iniersect
each Other and at their intersection ~.
pcliant placed two large Eat stones lead.
tng from the side walk to the crossing.
stones were somewhat Inclined. were IN
verdict Of the jury establishcs negligence
upon the part OF the city iu the manner ~
which they were placed FOR such use, and
also knowledge on IT, part Of such DANCE
months maintained a light az this crossing.
but upon the night IN question it was not
on the night Of May 10th isss appellee.
without negligence ca her part slipped
upon the stones above referred 10. and hy
her fail was injured in the MANNER alleged
dauiage 90 The amount Of tho verdict which
was SOU There az n decided conflict IN
the evidence us % whether or not the CON
suucuOn and use 81 the stones above re-
ferrcd 90 was negligence on the rant on
the .ciu. but under the. wen sciilti rules
IN this state the verdict was .Ilfiirted
tain A.
OPINION.
Appellant 10 Sc nrst assignment Of error
complains ~ tlp action " ihn court below
m prCumiuE a special exception inter
posed hg 20 20 nprellccs original petition
on the ground thai suci Petition ala NOT
allogc that ehp ga NOT have notice of she
deieciiye condition u The crossing prior
lively shows that shc dil hove such know.
ledge. we w NOT cuufirue che petition ls
showing ahiFmauvcy that plninu1 had
nOuce of the detective cuuuiuou W thia
crossing, nor 20 wc believe that the petit
ton WAS defective Do falling 90 aver uh.f-
mauyelF thai shc lid noi have such notice
The law applicable tn llis case o. not thnt
which pertains 90 the relation ~ master
sud servant under which % Il held THAT
The servant assumes the risk from defects
N which ne has notice. but u h 10 b.
phcablc iu the duty u city ia uldUr o. rcie-
rehce % it streets fnr the uru'rcuua ~
thS luenc; VINO sustain NO eonuacidGl ~
tied IN this state that LuuulcIgc uf tnn
defect hy un injured trGydcr prior 10 tlu
Injury "a not conclusive prilpnic OF uprIl
huiOy negligence thus raised d one fuI
the jury uuuCr the circumstances of the
particular cAav Hallway Ni G1saCuuip 90
- Texas 5N; city uf Austin w. Ritz. ib
.pl. ~ such cases unless plaintin ln stat
lug her case shows culuihulory negligence
ON nor own part it would sccin 90 BE- neccs-
sarS for the Defendant 20 plead @ would
seem 10 Pc necessary fpr thc dCfeuu ,lt
10 ulNud NJ. fOr "a iull decision ua 60 tlp
pIHrucy nloi this question see Murrs 80,
Appellant pleaded specially ln tho court
below That prior 90 The time whcil p.aiutin
was Injured it had entered INTO "a contract
with tie Dcnson Gas nni coal con.inny
ca furnish 90 10 "a ctr.Alu humber uf lHuris
upon It's streets Including thc one go the
crossing wherp the injury occurred. ana
That undcr such contract snid company ygag
bound 90 keep said lamp supplied with
taa I'M 9mnnE Ehle u was dark all
thht Y plnlnuQ hil1 suffered any injury by
and N there was any fault nt AN In TALL
Ing 10 have it lighted 70 was the fnnlt
Of thc said bcnis'm Gas aud Coal com
pnhy AMI n prayed that said company be
made "a party lp snid suit and FOR judg-
ment over against H..
Plaintiffs petition charged negligence on
Btrucuon OF tho stones referred 10 above
Pnd also ia falling to huvc this lght burn.
~ ana appellant ln lts rugwer does not
ed solely hy tho failure 10 have the lumD
lighted. Tie court below sustained "a ap6
eliu exception % this uHtWor mt"rp0scd by
the gus company upon the ground that il
showed no right uf aciion against its dc.
fault or omission coucurriuH with other
negligencc ON thr pam Of uIe city 20 cause
ihe injuiy 20 plaintiff conplalncd of IA her
petition. we ueleyg the rltng of the
,ourt was correct llnd appellants answer
~ Itself OF M connection Wnh thc gcr.
lion Of plaintiff shuwu that tie Injury to
pence OF the gas company in Failing tn
Keep the lamp lighted IN compliance with
lts contract with the city we uro not urc.
pnfed TO hoii that the city would NOT have
a right Of action nyrin8t such company for
lhe damage u h COmpplvd 10 pny appel.
ant. This question a. ably and exhaustive.
treated Ia tie case Of tie city OF tao1l..
Nn vs.. The iiroollyn CITY RAILROAD COM
Ruiy, - y. T.. lt1, also SEQ Chicago ys
Robbins. Black. 4iB: Robbins vs Cify of
Chicago, n L. - GT; Cooley Ou Tnria
~. llu; Armstrong Vs. Clarion county d
I'M Hpie, at9; Halfway vs. Railway. 50
IpAaa 1Wl II IL not, however, necessary
0r as 20 decide this question ln as much
a. we cpnHirue pluintlns petition ns churr-
~ negligence both upon the part Of tho
tly IN constructing tho crossing ana in
H. charge az the court we thinl, the Jury
uust have found such negligence TO have
uiated IN reference Ca the crossing. and
nter these circumstances &c seems 10 he
Etll netueu n defendants own negligence
natrihntcd IN causing thv Injury u cannot
ave contributed although M CONTRACTOR
rghFencc may ulso have contributed there
q. Hallway VS. Railway Wpra with the
Nhfr authorities above cited
We DO not believe the evidence fairly
Tised The iasuc as 70 plaintiffs having
Teen Injured hy ltcpplng upUn rocks not
the crossing OF Houston avenue a,id
lrendy streoi. AMI there was therefore no
Eror II refusing the charge as complained
4 IN tie tlllrd assignment, nor 10 We be-
lcre the charge OF the court 10 be- ynb
Get 70 any OF the other objections inter.
losei 10 a.
Il Will b. seen from the findings OF fact
Bat we would not be authorized 10 reverso
ne Judgment for lack OF evidence 70 sup
The jgdg,eat o. the court below viii
20 In 0ll things atilrmrd.
HEAD,
Associate Justice
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