Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 120
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120 CITY OF GALVESTON V. POSNAINSKY. [Austin Term,
Statement of the case.
2. DAMAGES.-In this case, as above stated, if there were pieces of glass or
other sharp and dangerous substances in the ditch, without which the injury,
notwithstanding the fall of the child, would not have occurred, even
then, though such substances would not have injured without the fall, yet
if the fall was caused by the defective condition of the sidewalk, then it
must be deemed the proximate cause of the injury.
3. SAME.-If the injury resulted from one of the causes, or from the two combined,
if such cause would not have existed but for the neglect of the city,
it would be liable if there was no failure on the part of the plaintiff to exercise
due care.
4. DAMAGES.- A verdict was rendered against a city for $10,000 damages,
caused by its negligence in failing to keep its streets in repair, whereby the
leg of a child nine years old was injured and the child rendered lame for
life. Held, that though the verdict was for a large amount, the judgment
would be permitted to stand, the supreme court expressing an unwillingness
to substitute their judgment for that of the jury in the absence of facts
showing undue influence.
APPEAL from Galveston. Tried below before the Hon. A. P.
McCormick.
Suit brought November term, 1873, of the district court of Galveston
county, by Nannie Posnainsky, a minor, who sued by her
father and next friend, G. Posnainsky, against the city of Galveston
for damages caused by her falling into a neglected drain, bordering
one of the sidewalks of the city, originally constructed by the city,
but out of repair, uncovered and unguarded, by which she was rendered
a cripple for life. Charged that the accident occurred through
the negligence of the city.
The defendant, besides the general denial, answered specially that
the injury, if any, was sustained and occasioned by the " carelessness,
want of attention and reckless disregard of all prudence" on the
part of the plaintiff. That the sidewalk was sixteen feet wide, entirely
unincumbered and free, open and smooth throughout its entire
width and length; that the street in front and adjoining the sidewalk,
was also unincumbered, open and smooth for its entire length,
for all travelers and passers; that between the sidewalk and street is
a gutter or drain which the defendant, in discharging the duties imposed
on her by the charter of the city, constructed and maintained
for the purpose of draining the location. "That the said
gutter was left open and uncovered by the authority of the city, intentionally
and designedly," so as better to preserve the health of
the city. That the gutter was of such size and width as to be easily
seen by all passers, and was seen and known to exist by plaintiff;
that it was near the house of plaintiff; that at the time of the accident
it was broad daylight; that the injury was not caused by the
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/142/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .