taken therefrom, and leave such street or sidewalk in as good order or condition as the same was before such excavation was made. The appellant secured from the city council permission to dig the ditch and lay the sewer pipe, and it is urged that it owed to the plaintiff and his wife, and to the public at large, the duty to comply with the ordinance which was enacted to safeguard the public. The permit to put in this sewer was given by the city council to the Houston Belt & Terminal Railway Company. The evidence showed that water tamping was the usual and customary way of tamping the refilling of excavations in public streets, and was the safest and most approved method of tamping, and it is undisputed that the ditch was not water tamped. The testimony showed that the plans and specifications for every foot of the sewer that was laid was filed with the Hedges Construction Company, and the specifications instructed the Hedges Construction Company as to how the work should be done. The contract between the Houston Belt & Terminal Railway Company and the Hedges Construction Company contained the following provision: "If necessary to water tamp the refilling of the above sewer, this is to be done at the expense of the company, the contractor to be allowed cost of work plus ten per cent." There was no testimony showing that there was any other method of tamping as efficient as water tamping, and no testimony going to show that any other system of tamping would leave the street or sidewalk in as good condition as it was before the excavation was made. shows that the Hedges Construction Company was to furnish merely the material and labor necessary to construct the sewer, for which they were to be paid so much per lineal foot for the sewer pipe, and so much per cubic yard for the excavation, but that the work was to be done according to the specifications of the Houston Belt & Terminal Railway Company, and that they were to be made as required by the railway company's chief engineer. As above stated, the tamping was clearly to be left to the railway company, and it was provided that, if the railway company decided that water tamping was necessary, the construction company should be allowed the cost of the work, plus 10 per cent. additional. Under the plans and specifications, the jury were justified in finding that the railway company was to maintain control and supervision of the work and direct how it should be done. This record shows that the dirt was not tamped down at all in the excavation, but, as in the language of one of the witnesses, "We piled the dirt on an average of a foot above the level where there was any trafficI mean foot traffic or vehicle traffic-during the construction work." [1] We have stated above that the permit to construct the sewer was given to the Houston Belt & Terminal Railway Company, and not the Hedges Construction Company, and, in our opinion, the railway company owed to the public a duty to see that the refilling was tamped in a safe and proper manner, and in compliance with the ordinance, before it accepted same; and appellant could not escape liability for failing to do so, by showing that it employed the Hedges Construction Company to furnish the labor and material for the job. [2] In our opinion, even if it should be conceded that the Hedges. Construction Company was an independent contractor in the performance of this work, and the Houston Belt & Terminal Railway Company was not responsible for any defect in the work of the construction company, the evidence is still ample to justify a finding of negligence on the part of the railway company, because the undisputed evidence shows that it was left to the railway company to decide whether the refilling should be water tamped, and that the railway company did not specify water tamping, although that was the usual and customary method of tamping a job of this kind, and the only safe way to get good results. The jury found that the Houston, Belt & Terminal Railway Company retained control and supervision of the work. From the record it appears that the appellant's engineer was on the ground while the refilling of this excavation was being done, and that such refilling was done under the direction of defendant and its engineer, and the jury found that as the work progressed the appellant and its engineer dictated as to how the refilling was to be done. The jury also found that the sewer was not constructed by the Hedges Construction Company for the appellant under an independent contract between them, whereby the Hedges Construction Company undertook and had direct charge of and performed all the details of the construction work, and that the Houston Belt & Terminal Railway Company, during the performance thereof, did not have only such charge and su- [3] It was alleged that the sewer in quespervision of the work by its engineer as to in- tion became the property of the city of Houssure the completion of same according to the ton, and constituted a part of its sewer sysplans and specifications thereof, and the rec- tem after it was completed; but, in our opinord shows that these findings are not attack- ion, that would not alter the appellant's liaed in this court, and we may say that they bility to the plaintiff and his wife and to the are sustained by the evidence. The plans and public at large for such injuries as might specifications were not introduced in evidence thereafter be sustained by reason of appelor accounted for in any way. Appellant's lant's failure to take proper steps to tamp engineer testified that he prepared these the refilling above the sewer, and make it plans and specifications, and this record safe for pedestrians using the sidewalk. 1 The sewer that was taken over by the city was packed, tamped, and rammed down was located several feet beneath the surface tight, and by failing to require the Hedges of the street. The condition of the sidewalk Construction Company to properly tamp the was not brought about by any defect in the refilling. Appellant's engineer, Mr. Gavin, sewer itself or by its becoming out of repair. testified, among other things, that, where a It was brought about by the negligent failure ditch was refilled at a point where there was of the railway company to properly tamp the traffic, it was customary to tamp the rerefilling and restore the surface of the street filling so that there would be practically no after the sewer pipe had been laid, and grew settlement at all. He testified as to what out of the railway company's failure to pro- was actually done as follows: vide against such subsidence of the surface as would injuriously affect a public sidewalk and endanger the lives and limbs of pedestrians. "We generally rounded up over the top of the sewer anywhere from six inches to two feet higher than the original surface; that provides for any settlement that may take place. We filled it higher than the original surface where there was any traffic over it. If you will allow me to explain that wherever we had construction work, if it was an open ditch we built a bridge across it with timbers and foot railing if it was street traffic-that is, vehicle trafficwe protected it the same way and built railing around to keep the traffic off. On most of our record shows that the railway company had take care of it during construction. I suppose street crossings we put timbers across there to secured an ordinance granting it a chise to construct a sewer from its ter From this record there is no evidence that the city attempted to relieve the railway company of any obligations which it owed to the public in connection with the construction of this sewer, even if it should be held that it had power to do so. The we piled the dirt on an average of a foot above the level where there was any traffic; I mean foot traffic or vehicle traffic, either one." When asked specifically about the crossing in question, he testified: and tamped in front of the De George Hotel, be"I would not say as to whether we packed cause all street crossings were the same, and I would not testify to any certain one during that construction because I looked after all of them, and I would not specify the De George Hotel above any other one." minal properties to Buffalo Bayou, and that this ordinance contained an obligation on the part of the railway company to construct the aforesaid sewer; that $15,000 was paid to the city for the privilege of being relieved of this obligation to carry the storm water from the terminal properties direct to the bayou, and for the privileges of being permitted to connect its properties with the new Therefore, in our opinion, the evidence Austin street storm sewer instead, and that shows that the Houston Belt & Terminal the railroad sewer, when constructed, was Railway Company did not comply with its to become a part of the city sewer system, duty to Mrs. Scheppelman and the public and be thereafter maintained by the city. at large, in that it did not fill up, pack, and There was no testimony that the city under- ram down tight the earth taken from the extook to relieve the railway company of lia-cavation, and leave the sidewalk and street in bility for such damages as might be sus- as good condition and order as the same tained by the city of Houston on account was before the excavation was made, thereof the negligent failure of the railway company to properly refill and tamp the ditch which was excavated for the purpose of laying said sewer, or that the city assumed or in any way became responsible for the negligent manner in which said ditch' had been refilled and tamped. A close inspection of the record will justify the conclusion reached by this court, that the first assignment of error must be overruled. The second, assignment of error challenges the action of the lower court in failing and refusing, upon defendant's request, to instruct the jury peremptorily in behalf of the defendant, it appearing that plaintiff is not entitled to recover, because the evidence is wholly insufficient to raise the issue of any breach of duty on the part of the defendant toward the plaintiff or plaintiff's wife, with reference to any of the matters and things set out in plaintiff's petition. by failing to comply with the express provisions of the ordinance regulating such excavations, the evidence showing clearly that the appellant breached its duty to appellee and his wife by failing to require the construction company to water tamp the refilling of the excavation. A careful examination of the record leaves us of the opinion that this assignment of error must be also overruled. The third assignment of error complains that the court erred to the prejudice of defendant in failing and refusing, upon defendant's request, to instruct the jury peremptorily in behalf of the defendant, it appearing that plaintiff is not entitled to recover, because the evidence is wholly insufficient to raise the issue that any alleged breach of duty on the part of the defendant was the proximate cause in law of any alleged injuries sustained by plaintiff's wife. [4] Appellee urged, by counter proposition, We are of opinion that the evidence justified that the evidence clearly shows that the ap- a finding that the condition of the sidewalk pellant breached its duty to the appellee and was brought about by the appellant's neglihis wife, and to the public at large, by fail- gent failure to see that the excavation was ing to see that the excavation was properly properly refilled and tamped, and that the In this record there is no evidence that the Houston Belt & Terminal Railway Company made any effort to repair the damage it had done to Preston avenue and the sidewalks thereon, or that it sought to obtain from the city council permission to do so. In White v. City of San Antonio, 25 S. W. 1131, it is held that where a city permits a ditch dug by a railway company across a street to remain unguarded, if either be liable for injury received by falling into it, both are liable. The assignment is overruled. mately caused the injury to Mrs. Scheppel-, to remove the obstruction or pitfall or to man. The evidence is ample to sustain a secure permission from the city to do so. finding that the appellant retained such control and supervision over the work as would render it responsible to the plaintiff and his wife and to the public at large, even though the work was actually done by the Hedges Construction Company. Without further consideration, we are of opinion that this assignment must be overruled. What has been said also applies to the fourth assignment of error, to the effect that the sewer in question was constructed under an independent contract with the defendant by Hedges Construction Company, and that the defendant retained no control over, and had no such supervision over, said work as to create or give rise to a legal responsibility for the condition thereof, such as is involved in this action. The fifth assignment of error is as follows: "The court erred, to the prejudice of the defendant, in failing and refusing, upon defendant's request, to instruct the jury peremptorily in behalf of the defendant, it appearing that plaintiff is not entitled to recover, because, under the undisputed testimony, the relation of the defendant to said sewer and to the street in question, and the condition thereof complained of, was not such at any time as to create a legal responsibility therefor attributable to the defendant in this action." Without going into the matter in detail, we are of opinion that this assignment must be overruled. The sixth assignment complains that it appears from the testimony that the city of Houston had taken over the sewer in question long prior to the accident in question, and thereby became solely responsible for the condition of the said street and sidewalk in question, and because, further, it wholly fails to appear that at the time the city took over said sewer, and made same a part of the city sewer system, said sidewalk at the point of the accident in question was defective substantially in the manner alleged in plaintiff's petition. It is urged by the appellee that the fact that the sewer, when completed, became the property of the city of Houston, and constituted part of its sewer system, did not alter appellant's liability to the plaintiff and his wife, and to the public at large for such injuries as might thereafter be sustained by reason of appellant's failure to take proper steps to tamp the refilling above the sewer and make it safe for pedestrians using the sidewalk; and also that there was no evidence that the city attempted to relieve the railway company from any obligation which it owed to the public in connection with the construction of this sewer, even if it should be held that the city had power to do so; and, further, that one who causes an obstruction or pitfall in a street cannot escape liability because the city has control over the street, and he had no authority to remove same, especially where he makes no attempt By the seventh assignment of error it is claimed that the court erred, to the prejudice of the defendant, in failing and refusing, upon defendant's request, to instruct the jury peremptorily in behalf of the defendant, it appearing that plaintiff is not entitled to recover, because it wholly fails to appear from any evidence in the record that the condition of the sidewalk which is claimed to have caused the fall of plaintiff's wife did not exist prior to the construction of the sewer in question. [5] In our opinion the evidence is amply sufficient to justify a finding that the condition of the sidewalk which caused the fall. of plaintiff's wife did not exist prior to the construction of the sewer in question. The testimony showed that the sidewalk was perfectly level before the construction of the sewer. It showed that the street or sidewalk leading from the curb to the main sidewalk was level before the sewer was built, and that a part of the sidewalk buckled up and the other part sank, one block sinking one way and one block sinking the other; that after the sewer was constructed the sidewalk began to slope down. Without going into the matter and quoting from the testimony of the witnesses, we overrule this assignment. [6] The eighth assignment complains that the plaintiff is not entitled to recover in his own name any of the damages alleged and shown to have been sustained, and appellant cites the General Laws of Texas 1915, c. 54, § 1 (Vernon's Ann. Civ. St. Supp. 1918, art. 4621a), in which it is provided: sation for personal injuries, sustained by the "All property or moneys received as compenwife shall be her separate property, except such actual and necessary expenses as may have accumulated against the husband for hospital fees, medical bills, and all other expenses incident to the collection of said compensation." This law was passed after the accident and after suit was filed. Mrs. Scheppelman was injured on November 20, 1912, and suit was filed some time during 1913. The assignment is overruled. The ninth assignment complains that the court erred, to the prejudice of the defendant, in overruling its amended motion for new trial, and in not granting same, in response to the ground urged as follows: The affirmative answer of the jury to special, vator Co. v. Anderson, 98 Tex. 156, 81 S. W. issue No. 4, propounded by the court in the main charge, is unsupported by the evidence, which said issue reads as follows: "If you have answered that the sidewalk was caused to sink in one place and buckle up in another, and one portion thereof was caused to be raised higher than the adjoining portions, then you will answer this question: Was such condition in the sidewalk the proximate cause of plaintiff's injuries? Answer, Yes or No." We will not go into the evidence seriatum, but deem it sufficient to say that the jury's finding that the condition of the sidewalk, in so far as it affected the fall of Mrs. Scheppelman, was different from the condition existing prior to the construction of the sewer along Preston avenue, was amply sustained by the evidence. The assignment is therefore overruled. What has been said above also applies to the tenth assignment of error. [7] The eleventh assignment complains that the trial court erred to the prejudice of the defendant in special issue No. 11, which reads as follows: "What sum of money, if paid now, will, in your judgment, fairly and reasonably compensate plaintiff for the injuries, if any, sustained by his wife, Kate Scheppelman, by reason of her fall, as shown by the pleadings and the evidence in this case? Answer by stating the sum of money." A careful examination leads us to believe that there is no error in this action of the court, and same is overruled. 282, 1 L. R. A. (N. S.) 198; Paris Gas & Light Co. v. McHam, 2 Willson, Civ. Cas. Ct. App. § 651; Drennon v. Patton Worsham Drug Co., 109 S. W. 218; Johnson v. Friel, 50 N. Y. 679; Elzig v. Bales, 135 Iowa, 208, 112 N. W. 540. A careful review of the entire record leaves us of the opinion that the court guarded the rights of appellant carefully, and that the record shows that no, error has been committed that would justify a reversal of the same. The judgment of the trial court is affirmed. ELLIS v. HOUSTON & T. C. RY. CO. (Court of Civil Appeals of Texas. Ft. Worth. April 20, 1918.) 1. EMINENT DOMAIN 191(1) - CONDEMNATION PROCEEDINGS-PLEADING. A petition to condemn land for use of a railroad company, alleging that the complainant herein desires to condemn said land and property for the purposes of constructing thereon its railway lines and tracks, depots, both freight and passenger, station buildings, machine shops, repair shops, side tracks, and connecting lines and tracks with other railway tracks, and for switches, turntables, toolhouses, reservoirs, for water supply, water tanks, and for additional terminal facilities of every kind and character, and for other lawful purposes necessary and incident to the building, operating, and maintaining of its said railroad and carrying out the purposes of its said corporation, is sufficient [8] The twelfth assignment challenges the under Vernon's Sayles' Ann. Civ. St. 1914, art. 6506, prescribing the allegations which must action of the trial court, as being error to be made, and authorizing condemnation prothe prejudice of defendant, in admitting in ceedings in county court if the owner and comevidence the photograph offered by the plain- pany are unable to agree on damages; the right tiff and referred to in the testimony of the to condemn land for the purposes mentioned being given by article 6504. witness George L. Charlton, the ground of 2. COURTS 21-JURISDICTION IN GENERAL. objection being that the proof of the accu- Allegations of jurisdictional facts relating racy of the work was not sufficient, and that it would require something more than Mr. Charlton's testimony to admit the photographs in evidence, the photographer himself not being present as a witness. It was decided in the case of Accousi v. G. A. Stow-ferring jurisdiction. ers Furniture Co., 87 S. W. 861, that in an 3. EMINENT DOMAIN 172-CONDEMNATION action for injuries the testimony of the in- Filing of application containing allegations jured party that a photograph offered in evidence was a correct picture of the scene of the accident was sufficient to render it admissible. This was done in the instant case. The assignment is overruled. The following authorities are applicable to this case: Kampmann v. Rothwell, 107 S. W. 120; Southern Express Co. v. Texarkana Water Co., 54 Ark. 131, 15 S. W. 361; Dillon v. Washington Gas Light Co., 1 MacArthur (8 D. C.) 626; White v. City of San Antonio, 25 S. W. 1131; Gray v. Pullen, 5 Best & S. 970; Ames v. Gannon, 77 N. J. Law, 385, 72 Atl. 27; Ry. Co. v. Brown, 11 Tex. Civ. App. 503, 33 S. W. 146; Dublin v, Taylor, 92 Tex. 535, 50 S. W. 120; H. & G. N. Ry. Co. v. Meador, 50 Tex. 77; Cameron Mill & Ele to the subject-matter of the suit, contained in a petition, of themselves, confer jurisdiction to determine the controversy presented, and such jurisdiction will be retained by the court until the defendant alleges and proves that allegations were made for the fraudulent purpose of con PROCEEDINGS JURISDICTION. of all facts necessary to confer upon the county - Since by Vernon's Sayles' Ann. Civ. St. 1914, arts. 6481-6534, the county court has exclusive original jurisdiction in condemnation proceedings, the district court will not, on the ground that the county court has no jurisdiction because the parties have not failed to agree as to damages as required by article 6506, and that the land is not subject to condemnation, enjoin condemnation proceedings after the county court has acquired jurisdiction by the filing of a sufficient petition, especially where plaintiff can be adequately compensated by damages, and the proof is ample to support a finding that the parties had been unable to agree as to damages. 5. EMINENT DOMAIN 273 ENJOINING | for such condemnation, if the company and CONDEMNATION PROCEEDINGS. the owner of the property were unable to agree upon the resulting damages. That article also prescribes the allegations which must be made in such a petition. The petition so filed by the company contained the Condemnation proceeding in a county court will not be enjoined on the ground that the property is not subject to condemnation, since it must be presumed that if the property is not subject to condemnation the county court will so find. 6. INJUNCTION 7-RESTRAINING ACTION-specific allegation of inability of the parties ERRONEOUS DECISION-REMEDY. Plaintiff's remedy for an erroneous decision of the county court is by appeal, and not by suit to enjoin proceedings. 7. EMINENT DOMAIN 300 IRREPARABLE INJURY EVIDENCE. In suit to enjoin condemnation proceeding in county court, evidence held insufficient to show that plaintiff could not be adequately compensated by damages for temporary use of property if it was finally adjudged that right to condemn did not exist in view of Vernon's Sayles' Ann. Civ. St. 1914, arts. 6518-6530, as to taking into consideration, not only the right of way, but also the adjacent property in estimating damages for temporary possession and use of right of way. 8. EMINENT DOMAIN274(1) - CONDEMNATION PROCEEDINGS-ENJOINING POSSESSION. A showing that commissioners would be unable to assess damages adequate to compensate plaintiff for injury to his property by proposed condemnation was a necessary predicate for restraint of possession by defendant railway company. to agree on the amount of such damages, also all other allegations required by that statute. Upon the filing of that petition the county judge appointed three disinterested freeholders of the county as special commissioners to assess the damages which the owner of the land might sustain by reason of such condemnation. The commissioners, after being duly sworn as required by article 6509, appointed a day and place for the purpose of determining the amount of such damages, and at the same time issued notices to the parties interested, notifying them of the time and place so selected for such hearing, which notices were duly served, all in compliance with article 6509 to 6513, inclusive, of the Statutes. Before the date set for such hearing, J. M. Ellis instituted this suit in the district court of Tarrant county to enjoin the commissioners from proceeding with said hear Appeal from District Court, Tarrant Coun- ing to assess damages and also against the ty; Ben M. Terrell, Judge. Suit by James M. Ellis against the Houston & Texas Central Railway Company. Relief denied, and plaintiff appeals. Affirmed. McCart, Curtis & McCart, of Ft. Worth, for appellant. Thompson, Barwise & Wharton and A. J. Baskin, all of Ft. Worth, for appellee. DUNKLIN, J. The Houston & Texas Central Railway Company filed with the county judge of Tarrant county a petition in writing seeking to condemn for the uses of the company a strip of land of 12.48 acres running across a part of a larger tract situated in said county and owned by James M. Ellis, a resident citizen of that county. That petition contained the following allegations: "That the complainant herein desires to condemn said land and property for the purposes of constructing thereon its railway lines and tracks, depots, both freight and passenger, station buildings, machine shops, repair shops, side tracks, and connecting lines and tracks with other railway tracks, and for switches, turntables, toolhouses, reservoirs, for water supply, water tanks, and for additional terminal facilities of every kind and character, and for other lawful purposes necessary and incident to the building, operating, and maintaining of its said railroad and carrying out the purposes of its said corporation.' 'railway company to enjoin it from taking any further steps seeking to condemn said property for the purposes sought. Upon the filing of that petition the district judge ordered the issuance of notices and service thereof upon the commissioners and railway company commanding them to appear before him at a time fixed in the order, then and there to show cause why the temporary writ of. injunction prayed for in the petition should not be issued. Later the petition was heard and considered together with evidence introduced by all the parties, and upon such hearing plaintiff's application for the writ was refused. From that order Ellis has appealed. The grounds upon which Ellis based his prayer for relief may be briefly stated as follows: First. That the county court had not acquired jurisdiction to assess such damages and decree the condemnation proposed in view of the fact that the railway company and Ellis had not failed to agree upon the damages which might occur by reason of the taking of the strip of land sought to be condemned; the contention being made that in the absence of such inability of the parties to agree upon the damages the county court could not acquire such jurisdiction, in view of the provisions of article 6506 of our Statutes. [1] The right of a railway company to condemn land for those uses is given by article 6504, V. S. Tex. Sts., hereinafter quoted. By article 6506 of the Statutes the company Second. That prior to the filing of said was authorized to institute condemnation application for condemnation of the properproceedings in the county court by filing with ty in controversy Ellis had dedicated the the county judge of the county a petition strip sought and the land adjacent thereto For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |