After a careful consideration of the motion for a rehearing in this case, we have reached the conclusion that we erred in reversing the judgment of the trial court and that of the Court of Civil Appeals.
We granted the writ of error for the reason that we were of opinion that the trial court erred in admitting certain testimony as to plaintiff's damages. The objection was that the allegations in the petition were not broad enough to admit the evidence. But upon consideration of the case after submission, we concluded that the averments of the petition were sufficiently comprehensive and that the court did not err in admitting the testimony. Nor did we find that the assignments, with one exception, pointed out any other error. Upon a reconsideration of the case upon the motion for a rehearing, we have changed our opinion not only as to the specification of error which we then sustained, but also as to one which we then overruled.
In our former opinion, it was held that the court should have given the following charge, as requested by counsel for defendant: "You are instructed that if you find that plaintiff's wife was injured by reason of the fact, if you find such to be a fact, that a plank over a hole in defendant's sidewalk was loose or warped, and would not have occurred but for the fact that such plank was loose or warped, then before plaintiff could recover damages against defendant, you must find from the evidence before you that defendant's officers, agents, or servants, or some of them, had actual notice that the same was so loose or warped or that the same had been in such condition for such length of time before the said accident that by the use of reasonable diligence and care they could have known of such fact before the said accident. By reasonable diligence and care as used in this charge is meant such diligence and care as a person of ordinary prudence would have used *Page 45 in such a matter under similar circumstances." We now think that the court gave a charge which accorded better with the pleadings and evidence; and that therefore the requested instruction was properly refused. The petition contained two counts; and, while separate counts in a petition have been deprecated by this court, there was no exception on that account in this case, and therefore the plaintiff was entitled to recover upon either. In the first count, it was alleged that by reason of a defectively constructed sewer and embankment on the street on which the accident occurred, "said embankment along said Harwood Street constantly and repeatedly caved in and was thereby rendered unsafe, dangerous, and extremely hazardous for traveling, especially for persons traveling along said side of said street; that the street and sidewalk along said street was defectively and improperly and negligently constructed and graded and was left far above the natural drain below and no guards were placed along same to protect passengers on said sidewalk; and that by reason of said defective construction of said sewer and said embankment and street and sidewalk it repeatedly caved in, undermined, and washed away, leaving a large and deep hole along said sidewalk, and by reason of the acts of said city, became hazardous and dangerous to all passengers, of all of which defendant had due and legal notice." In the second count, the allegation as to the defect in the street is "that said city negligently and unskillfully filled up said street and also placed a culvert or conduit for the water under said street, causing the water to flow up against the embankment above and below and to loosen the embankment, causing the sidewalk on the east side of said street to cave in and form a hole eight or ten feet deep along said sidewalk; that along said sidewalk were placed at the instance or with the consent of said defendant, city of Dallas, planks across said hole which were upturned and loosened and not securely fastened, leaving said sidewalk at said place insecure, hazardous, and dangerous, all of which was well known to defendant, and due notice of same was given to defendant more than ten days prior to the injury hereinafter stated.
"That it was the duty of said defendant to keep its streets and sidewalks in proper repair, yet said defendant failed and refused, although duly notified to repair said sidewalk along said street."
The court, in its general charge, instructed the jury as follows:
"If you find and believe from the evidence that on or about the 17th day of April, 1894, the defendant did use reasonable care in repairing said sidewalk where the injury occurred so as to make the same reasonably safe for travel, but that thereafter said sidewalk became from any cause unsafe for travel and the defendant city had notice thereof, either actual or constructive, and failed to repair the same so as to make it reasonably safe for travel, and that as the direct and proximate result of such unsafe condition, if any, and the failure of defendant to repair such sidewalk, if any such is shown after notice had by it thereof, plaintiff's wife, without fault or want of due and reasonable *Page 46 care on her part, fell into the hole in said sidewalk and suffered injuries therefrom, then in such event, you will find for plaintiff.
"As to constructive notice, you are charged that if you find that said sidewalk, at the time of the accident, was unsafe for travel, and that such condition existed for such length of time before said accident as that the officers of the city of Dallas by reasonable care and inspection of the streets and sidewalks would have discovered the same, notice may be inferred. And it is for you to determine from all the facts and circumstances in evidence whether or not the defendant did have notice of the condition of said sidewalk after the 17th of April, 1894, if you find it was defective thereafter.
"If you find and believe from the evidence that on or about the 17th day of April, 1894, the defendant repaired the sidewalk at the place where plaintiff's wife was injured, and in doing so used reasonable care to make the same reasonably safe for travel thereon, and that thereafter it had no notice, actual or constructive, as above explained, of such sidewalk becoming unsafe for travel, if it did so become unsafe, then and in such event you will find for defendant."
The instruction which was requested and refused charged the jury to find for the defendant, unless they should find the injury resulted from a warped or loose plank, and the city had notice of the defect. This was practically to instruct them to disregard the allegations and evidence as to the hole under the sidewalk and its original faulty construction. The evidence showed that there was a hole in the sidewalk of considerable extent, and that it was guarded solely by a walk made of two twelve-inch planks laid lengthwise along the walk two inches apart and nailed to sleepers eight or ten feet apart. This was evidently a dangerous construction in itself. It was dangerous without reference to the question of repair. If the plank walk had been properly safeguarded, the accident would not have occurred as it did, although the plaintiff's wife may have tripped and fallen. If the jury found that the walk was negligently constructed, and that without fault on her part Mrs. Jones fell off and into the hole, it seems to us she was entitled to recover whether the planks were securely nailed or not. If the plank had become loose and the city was chargeable with notice of the fact and Mrs. Jones' fall was caused by the loose plank, it was but another act of negligence on the city's part contributing with the general faulty construction of the walk to her fall into the hole. But if the plank was securely fastened and Mrs. Jones, without fault on her part, in the dark, made a misstep and stumbled, — a contingency likely to occur, — and fell into the hole, we think it clear the city would have been liable. Nor do we think the case would have been different if the plank had become loose and caused Mrs. Jones to fall, and the city was without notice, actual or constructive, of the defect.
The hole under the sidewalk and the dangerous construction that bridged it were the immediate cause of the injury, — a cause without *Page 47 which the specific injury would not have been inflicted. The following terse statement of the law by a distinguished jurist and text-writer is, we think, peculiarly applicable to the case: "If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which were innocent." Cooley on Torts, 2 ed., 76. Since the requested charge made the liability of the city depend upon the question of a plank having become loose and upon its notice of the defect, we are of opinion that it was correctly refused.
In his petition, the plaintiff claimed $100 for medical services and medicine for his wife, made necessary by her injuries. On the trial, being upon the stand as a witness, he was asked by his counsel the question, how much he had paid out for doctors' bills, to which he answered $200. The testimony was objected to on the ground that the demand was "not itemized" in the petition, and the objection was overruled. In this particular, the ruling of the court was obviously correct. But the charge of the court instructed the jury that if they should find for plaintiff, they should find such an amount of damages as would compensate him (among other things) "for his expense necessarily incurred in respect to [his wife's] injuries, if any had been shown." This was without qualification. When the evidence as to an element of damage would authorize a recovery for a greater amount than that claimed in the petition, it is affirmative error to instruct the jury to allow for the amount shown by the evidence. It is not the case of an instruction which is defective in not covering every point, but which is good as far as it goes. In the latter case, the party desiring a more comprehensive instruction must ask for it. Not so in the former; it is error which works a reversal of the judgment. But we know the error in the charge has prejudiced the plaintiff in error only to the extent that the sum testified to exceeds the amount claimed in the petition. It is a proper case for a remittitur if the defendant in error sees proper to allow one.
If, therefore, a remittitur for $100 be filed in ten days, the judgment will be affirmed; otherwise, it will be reversed and the cause remanded.
Reversed and remanded. *Page 48