
    GRAPOTTE v. ADAMS.
    No. 6765.
    Supreme Court of Texas.
    Jan. 5, 1938.
    
      Carter & Lewis, Champe G. Carter, Randolph L. Carter, and H. C. Carter, all of San Antonio, for plaintiff in error.
    T. M. West, Nat L. Hardy, and Frank B. Buchanan, all of San Antonio, for defendant in error.
   CRITZ, Justice.

This cause was tried in the district court of Bexar county, Tex., with Marie Gra-potte as plaintiff and Charles D. Adams as defendant. We will here designate the parties as they so appeared.

Plaintiff sued the defendant for damages resulting from personal injuries received by her from stepping into a hole or depression in the sidewalk in the street abutting the premises rented and operated by the defendant at the time. Trial in the district court resulted in a judgment for the plaintiff for a substantial sum. On appeal to the Court of Civil Appeals this judgment was reversed, and judgment rendered for the defendant. 69 S.W.2d 460.

The record shows the following facts: That defendant, at the time of this accident, was operating a storage garage in the city of San Antonio, Tex., upon the premises abutting this sidewalk; that he was operating such garage as a business for profit; that the garage building was three stories high, and approximately 300 to 350 motor vehicles were handled therein each day; that such vehicles- all passed over this sidewalk, as invitees of defendant; that such garage remained open at all hours, day and night; that the sidewalk where plaintiff sustained her injuries was in the street in front of this garage; that in order to enter the garage it was necessary for cars to use a driveway leading from the portion of the street used by vehicles into such garage; that the sidewalk was a part of such driveway, and it was necessary .for cars to pass over or across this sidewalk every time they entered or departed from the garage; that this condition existed at all times defendant occupied the garage, and for years prior thereto; that as a result of- numerous vehicles passing daily over the sidewalk, as above stated, such sidewalk had become worn so that a hole or depression existed therein ■ where the wheels of the vehicles passed; that plaintiff, while walking on the sidewalk at night, stepped into such hole or depression and fell, thereby sustaining severe bodily injuries; and that the defendant knew, or ought to have known, the defective condition of the sidewalk.

It we understand this record, it further shows that defendant was a tenant of the owner of this garage, and had been for a few months prior to the time plaintiff was injured; that the buildipg had been used as a storage garage for years before defendant rented it; that this sidewalk was defective and had this hole or depression therein at the time defendant rented it; that such hole or depression was caused by motor vehicles passing over the sidewalk, and that the use of the sidewalk by defendant in having his customers pass over it had deepened such hole or depression to some extent — the amount of which we are unable to say. We assume, for the purposes of this opinion, that defendant contributed to cause this depression by inviting his customers to cross over the sidewalk.

If we understand the plaintiff’s petition, she attempts to predicate her right to recover purely under the common law, as for tort.

Under the above record, the Court of Civil Appeals holds, as a matter of law, that no cause of action exists-against the defendant. In so holding, the Court of Civil Appeals reaffirmed the well-established rule of law that a sidewalk is a part of the street and the duty to exercise ordinary care to maintain such sidewalk in a reasonably safe condition for the use of the public rests upon the city, and not upon the abutting property owner. This is certainly the general rule, and we find no facts in this record that take this case from under it. Defendant commited no unusual, wrongful, or unlawful act which caused the hole or depression here involved. It certainly was not unusual, wrongful, or unlawful for him to conduct his garage business in the way that he did. It is true that many cars passed over this sidewalk as his invitees, hut such fact simply shows the degree or quantity of use — not an unusual use in a legal sense, and not a wrongful or an unlawful use.

We have carefully read the opinion of the Court of . Civil Appeals, and we think it correctly decides the issues of law involved in this case. jNo good purpose-can be served by further discussion here. We therefore adopt the opinion of the Court of Civil Appeals as the opinion of this court on all matters therein discussed.

Plaintiff contends that the Court of Civil Appeals was in error in rendering judgment for the defendant, even if it correctly decided the law questions expressly discussed in its opinion. This contention is based upon the further contention that the plaintiffs pleadings and evidence raise the issue of the defendant having been guilty of pror ducing and maintaining a nuisance. We are unable to sustain this contention. Under our view, defendant committed no unusual, wrongful, or unlawful act in regard to producing the hole or depression in this sidewalk. . Furthermore, he committed no wrongful or unlawful act in failing to repair it. All this being true, we are unable to see how he could be guilty of producing a nuisance, or of maintaining one.

The judgment of the Court of Civil Appeals is affirmed.  