This appeal is by Carl Green from a judgment denying him a recovery against the city of Henrietta for damages to his automobile; the judgment being based upon an instructed verdict in favor of the defendant.
Gilbert street and Main street, two public streets of the city of Henrietta, intersect each other at right angles ; Gilbert street running east and west and Main street running north and south. Main street is paved on both sides and across the intersection; Gilbert street is paved east of that intersection but on the west side it is not paved, and on that side its surface drops some 2 inches below the surface of the pavement on Main street.
At the request of plaintiff and his wife, A, B. Stages started to take plaintiff's wife in plaintiff's car to the residence of one of her neighbors, about two blocks north of the street intersection. In so doing he approached the intersection on the unpaved side of Gilbert street traveling east, and, when he reached the intersection, he turned the car in a northeasterly direction in order to continue his journey north on Main street and, in so doing, he drove ever a metal marker which the city had constructed at the center of the street intersection, and the car was damaged as the result of striking that marker. This suit was to recover damages for that injury to the car. The metal marker was 18 inches long, 14 inches wide, and 5 3/4 inches above the pavement, weighed about 30 pounds and was made of iron. In his testimony the reason given by Staggs for driving onto the pavement at the street intersection in an angling direction was that Mrs. Green, riding in the car, was complaining of a headache and that it occurred to him to turn onto the pavement in that manner so as to lessen the jar of the car and thereby it would cause her less pain. He admitted on the stand that he was perfectly familiar with the condition of the two streets at the point of intersection; that he had frequently driven over them in his car; that he had formerly been a member of the city council of Henrietta and knew of an ordinance of the city — which was introduced in evidence — requiring vehicles turning to the left into another street to pass to the right of and beyond the center of the intersection before making the turn. He further testified that he also knew that his act in turning to the left of the center of the intersection of the street instead of keeping to the right until he passed beyond the center of the intersection was also contrary to the statutes of the state regulating traffic on the highways. See Texas Penal Code, art. 801, subd. (G), making the violation of that and other regulations a penal offense. That testimony of Staggs' was uncontradicted.
Plaintiff's suit against the city was based upon allegations of negligence in maintaining Gilbert street in the condition it was at the place where it abutted the paved intersection of Main street, where its surface was lower than that of Main street and which negligence it was alleged was the proximate cause of the accident.
It is a familiar rule that the violation of a penal statute or municipal ordinance is negligence per se and we believe it clear from the undisputed evidence that Staggs, in driving the car to the left of the center of the street crossing where the metal marker was placed instead of to the right, as required, violated both the city ordinance and the penal statute cited above, and therefore was guilty of negligence as a matter of law, which proximately contributed to the injury and precluded plaintiff's right of recovery. Furthermore, even though it could be said that the evidence was sufficient to warrant the submission of the issue to the jury of alleged negligence of the city, we yet doubt the sufficiency of the evidence, as a matter of law, to warrant a further finding that the city should reasonably have anticipated that some one might probably drive over the metal marker in the manner and under such circumstances as did *Page 443 Staggs, with full knowledge of its presence and of the fact that in so doing he would be violating the city ordinance and the penal statute, although it is not necessary to determine this question and we do not determine it in view of our foregoing conclusion.
It is therefore unnecessary to determine the merits of another assignment to the exclusion of the testimony of Troy Douthit, offered by the plaintiff to show that shortly before this accident he had had a similar one at the same street crossing.
Accordingly, all assignments of error are overruled and the judgment of the trial court is affirmed.