dissenting.
Under established precedents—Lower Neches Valley Authority v. Murphy, 536 S.W.2d 561 (Tex.1976), and State v. Tennison, 509 S.W.2d 560 (Tex.1974)—the County is not liable here unless it was under the duty to warn Eaton, et al., of the hole in the pavement. It was under this duty only if the condition of the payment was a “special defect” such as an “excavation” or “obstruction.” Section 18(b) of the Tort Claims Act reads:
Sec. 18.
(b) As to premise defects, the unit of government shall owe to any claimant only the duty owed by private persons to a licensee on private property, unless payment has been made by the claimant for the use of the premises. Provided, however, that the limitation of duty contained in this subsection shall not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads or streets, nor shall it apply to any such duty to warn of the absence, condition or malfunction of traffic signs, signals or warning devices as is required in Section 14(12) hereof. (Italics are added).
The majority applied the ejusdem generis rule of construction to the end result, i. e., to a hole in the street, no matter how it came to pass. This, I think, is misplaced. I agree with the recognition by the United States Supreme Court that this rule — that where particular words of description are followed by general terms the latter will be regarded as applicable only to persons or things of a like class — is far from being of universal application, and never is applied when to do so will give to a statute an operation different from that intended by the body enacting it. Its proper office is to give effect to the true intention of that body, not to defeat it. Danciger v. Cooley, 248 U.S. 319, 39 S.Ct. 119, 63 L.Ed. 266 (1919). Of controlling significance is the causative factor implicit in the words “excavation” and “obstruction” used by the Legislature in Section 18(b). Each of these words carries the idea of an overt act, of *181something having been done by the unit of government of which it would have immediate knowledge and for which it should have to answer. More appropriate, then, is the doctrine of construction, noscitur a sociis, which teaches that the meaning of particular terms in a statute may be ascertained by reference to words associated with them in the statute; and that where two or more words of analogous meaning are employed together in a statute, they are understood to be used in their cognate sense, to express the same relations and give color and expression to each other. An excavation is defined as a cavity formed by cutting, digging, or scooping. Obstruction is defined as a thing that obstructs or impedes; an obstacle, impediment, or hindrance, as in a street, river, or design. Webster’s New International Dictionary of the English Language (2d Ed.) (1961), at 888, 1682.
The Supreme Court of Pennsylvania has written that “To excavate means to make a hole or cavity in, hollow out, scoop, dig or cut a hollow in . .” Rochez Bros. v. Duricka, 374 Pa. 262, 97 A.2d 825 (1953). It has been held that an exposed face of a stone quarry was not an “excavation” within the terms of a statute requiring the erection of good and substantial fences or other safeguards sufficient to prevent persons and animals from falling into shafts or excavations. McDermott v. Kaczmarek, 2 Wash.App. 643, 469 P.2d 191 (1970). See also Orr Ditch & Water Co. v. Justice Court of Reno, 64 Nev. 138, 178 P.2d 558 (1947).
It is even more strained to say that a wear and tear hole in a street is an “obstruction” within the terms of this statute. An obstruction is a hindrance, obstacle, or barrier. Carder v. City of Clarksburg, 100 W.Va. 605, 131 S.E. 349 (1926).
There is no claim or evidence that the County excavated, i. e., made or dug or otherwise created the hole or that any type of barrier or hindrance had been erected by the County. Indeed, the majority in its recitation of the facts recognizes that the hole resulted from pavement age and wear. We know that holes in pavements resulting from normal wear and tear are commonplace. They are of all sizes and may increase in size and depth from day to day. I know no way of determining when a wear and tear hole, which most usually has a small beginning, becomes an “excavation” or an “obstruction.” I know no way of determining how big or how long standing it must be to qualify as such. In my view, an extension of the coverage of the Tort Claims Act to this commonplace condition goes far beyond the terms of Section 18(b).
I therefore dissent in the conviction that this far-reaching expansion of the liability of governmental units is without warrant either in the actual words of the statute or in the legislative intent evinced by these words. My views are in accord with the action of this Court in letting stand the ruling in Sutton v. State Highway Department, 549 S.W.2d 59 (Tex.Civ.App.1977, writ ref’d, n. r. e.).
Dissent joined by GREENHILL, C. J., and BARROW and CHADICK, JJ.