
    J. W. Browne v. J. A. Bachman et al.
    Decided February 11, 1903.
    1. —Negligence in Law—City Ordinance—Excavation in Highway.
    A city ordinance imposing a penalty upon one making an excavation in the highway and leaving it unfenced was admissible against a defendant other than the city, in a suit by one injured by falling therein, its effect being to make such act negligence in law. /
    2. —Same.
    ■ Such ordinance did not make the act of the city itself negligence in law, but was admissible against the city on the issue of its negligence, upon the same principle as are the rules of railway companies for the government of their employes.
    3. —Contributory Negligence—Notice of Defect—Charge.
    A charge that a plaintiff suing for damages from falling into a ditch in the street could not recover if he had notice of its existence was erroneous, since he might have known it was there without knowing it was left unfenced.
    4. —Evidence—Plaintiff’s Intoxication.
    Proof of drunkenness or habitual excess in the use of intoxicants on other occasions by plaintiff was not admissible on the issue of his drunkenness on the occasion of his injury.
    Appeal from the District Court of Caldwell. Tried below before Hon. L. W. Moore.
    
      McNeal & Ellis, for appellant.
    
      E. B. Goopwood and M. G. Jeffrey, for city of Lockhart.
    
      A. B. Story, for appellee Bachman.
   KEY, Associate Justice.

Appellant brought this suit against J. A. Bachman and the city of Lockhart, to recover damages caused by the plaintiff’s stepping into a ditch in the nighttime in a public street within the corporate limits of the city of Lockhart. The trial in the court below resulted in favor of the defendants, and the plaintiff has appealed.

We sustain the first assignment of error which complains of the ruling of the court in not permitting the plaintiff to introduce in evidence' an ordinance of the city of Lockhart, plead by him in his petition, and which he charged the defendants with violating. The ordinance referred to reads as follows:

“Chapter 2. Article 31.—Anyone who shall dig or cause to be dug, any excavation on or adjoining any highway, street, alley or sidewalk, or upon any uninclosed lot or square within the limits of this city, and shall leave the same unfenced, or not securely covered, shall be deemed guilty of a -misdemeanor, and upon conviction shall be fined not less than one nor more than five dollars.”

We hold that this ordinance was valid, and if the defendant Bach-man violated it, such violation on his part was negligence per se; and if as a result thereof the plaintiff was injured, without fault on his part, Bachman' will be liable to him for such injury. Tobin v. City of Corsicana, 57 S. W. Rep., 319, 23 Texas Civ. App., 492 ; Sullivan v. City National Bank, 65 S. W. Rep., 40, 27 Texas Civ. App., 359 ; Houston, B. & N. Railway Co. v. Pollard, 66 S. W. Rep., 851, 28 Texas Civ. App., 172.

However, as the city of Lockhart is a municipal corporation, we hold that the ordinance does not apply to it; and therefore a violation of the ordinance would not, as against the city, constitute negligence per se. Ritz v. City of Austin, 1 Texas Civ. App., 455 ; Fleming v. Loan Agency, 87 Texas, 238 ; Seawright v. City of Austin, 42 S. W. Rep., 857.

As a matter of fact, it can not successfully be contended that, because the city of Lockhart granted Bachman a franchise which authorized him to excavate in the streets for the purpose of putting in a waterworks plant, therefore it would be a party to Bachman’s failure to comply with the ordinance. If the city is liable at all, such liability must rest alone upon the theory that Bachman failed to properly guard the excavation, and that, after due notice thereof, the city failed to exercise reasonable diligence to accomplish that purpose itself.

However, we think the- ordinance was admissible against the city itself upon the issue of negligence vel non, upon the same principle that rules and regulations made by railway companies for the guidance of their employes are admissible against such companies upon the issue of negligence.

We also sustain some of the criticisms urged against the fifth paragraph of the court’s charge. It assumes that the plaintiff could not recover, if he had previous notice of the existence of the ditch; whereas, he might have known that the ditch had been dug, but had no notice of the fact that it had not been securely covered, as authorized by the. city ordinance. Of course, if he knew that an open ditch was there, and voluntarily stepped in it, such conduct on his part would prevent a recovery if it constituted contributory negligence.

Said paragraph of the charge was also somewhat confusing, as pointed out in appellant’s brief. ;

We also sustain the eleventh assignment of error, which complains of the action of the court in permitting the defendants to prove that for the last fifteen or twenty years the plaintiff had been addicted to excessive use of intoxicants. Whether or not the plaintiff was drunk on the occasion in question was a legitimate inquiry, but proof of drunkenness or the excessive use of intoxicants- on other occasions was not. admissible:, Railway Co. v. Johnson, 92 Texas, 380 ; Railway Co. V. Ives, 6 Texas Ct. Rep., 410.

Assignments presenting other questions of law are overruled; but this, however, does not involve any expression of opinion by this court' upon the merits of the case as developed by the testimony.

For the error indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.  