*227Opinion.—Since the preparation of the briefs by the counsel in this case, the principles controverted by appellant have been discussed, and, in part, recognized. It would seem, however, that to the extent the demurrer was sustained below it was well taken. The duty to keep the section of the streets in repair grew out of the city ordinance conferring privileges and imposing duties upon the exercise of the franchise granted.
In the case of the City of Navasota v. Pierce, 46 Tex., 530, Moore, J., the general rule is recognized “ that where, for a consideration from the sovereign, a corporation or individual has become bound, either by expressed or implied covenant or agreement, to do certain things, such corporation or individual is liable, in case of neglect to perform such undertaking, not only to a public prosecution by indictment at common law, but to a private action at the suit of any person injured by such neglect.”
This rule, under the conditions indicated, would affect, with the duty and consequent liability for neglect of it, a town or city. Id., 531. “ It cannot be controverted, and has probably never been denied, . . . when the charter (of a town or city) confers some franchise or privilege from which profits may be made, apart from its governmental powers, and which might have been granted to a private corporation or to an individual, as well as to the municipality, an individual action may be maintained for damage sustained from a breach of such condition, or through the negligent or improper exercise of the rights conferred by such franchise.” Id., 537.
Under the authority of the case cited, if the charter of the city of Houston, as we suppose it is, in the absence of proof, is “limited merely to the delegation of governmental powers to the corporation, the city would not, under the pleadings, be liable, had it been sued by plaintiff for the injuries for which he has sued the appellant.” But does this immunity extend to the street railway company, or does the city ordinanc'e protect the appellant from liability ?
*228The city authorities, as contemplated by the charter granted to the “ Houston City Street Railway Company,” had the power to impose, by ordinance, upon the appellant the duty that it “ shall, at all times, keep and maintain, in good order, all crossings at the intersection of other streets with the streets named, over which the street railway may be constructed.” The ordinance so authorized had “the force, as to persons bound thereby, of laws passed by the legislature of the. state.” 1 Dillon on Municipal Corporations, sec. 246, and authorities cited.
The railway company being directly affected by the ordinance, it was, by law, required to keep the street crossings in good order. The city, by its ordinance, added to its contract with the street railway company the sanction of legislation with its consequences. The neglect to observe this ordinance was a violation of law, and the violation in the case made by the plaintiff was the cause of the injury; or, at least, the injury was occasioned by the defect in the crossing as alleged. The city imposed upon the appellant, in connection with privileges granted, a duty which it did not itself owe, other than from its proper exercise of the governmental functions committed to it by the state in granting its charter. To the violation of a duty so arising, the principle as given in the extract above from the opinion in City of Navasota v. Pierce, attaches responsibility. That the city is not liable does not prevent its passing the ordinance with conditions which include, as construed by the courts, liability for non-compliance with the ordinance, or neglect of duty to the public, inv'olved in the undertaking. Directly, and with the force of legislative authority, the city imposed duties and liabilities upon the appellant beyond those resting upon the city. The action arises not from a breach of the contract with the city, but from a violation of law, and damage caused to plaintiff by the unlawful neglect.
We hold, therefore: 1. That the charter and city ordinance, under which the appellant operated, imposed the *229duty upon it, upon granting it valuable franchises; and that the appellant was bound thereby as to its conduct and duties in operating its railway. 2. That the ordinance, which was a law to appellant, required it “at all times to keep and maintain in good order all crossings,” etc., in which was included the crossing of Commerce street by Milam street, in the city of Houston; and that instead of protecting from liability, the city ordinance imposed a duty and consequent liability upon the appellant. 3. That from the breach from neglect to keep such crossings in good order, an action would lie in favor of any one injured thereby. And that there may be no remedy against the city is not a defense by the appellant to the action brought against it for the same injury, and for which it was liable.
It follows that the petition, so far as sustained, was good, it having alleged facts showing such conditions, breach of duty and damages.
Second. The first section of the instruction, and which is assigned as error, embraced the substantial allegations in. the petition as a ground of recovery. Having reached the conclusion that the petition was good, the charge embodying it was also proper.
Third. The last paragraph of third section objected to is, in its proper construction, as follows: “ If the proof shows that the crossing was kept in repair, but that suddenly a plank was broken, and defendant, in the exercise of due care and attention, could not have discovered the same, then it may be considered a case of inevitable accident, for which defendant cannot be held liable; on the other hand, if the defendant could have discovered the defect by the use of due and proper care, then it does not fall under the head of inevitable accidents.”
In the discussion by counsel this charge and the petition are both criticised for not containing, as a fact or allegation, notice of the defect by the defendant. Had a charge been asked, the court may have given additional instructions as to notice, due and proper care, its absence, etc. *230The petition does more than allege notice in alleging that “ there was left by the defendant, and unknown at the time to the plaintiff, a hole or opening,” etc.; “ the failure to keep the crossing in repair,” was gross negligence, etc. The testimony showed that the defect was at a public crossing, and tended to show that it had existed for several days before the injury.
The testimony sufficiently sustained the finding upon the want of due and proper care; and such care not having been used, would be equivalent to notice in fixing blame upon the defendant. The testimony supported a finding of negligence and its consequent liability. 2 Dillon on Municipal Corporations, secs. 785, 790, and notes.
Finding no error in the record, the judgment below should be affirmed.