Blaylock v. Incorporated Town of Muskogee, 1,685.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Citation: 117 F. 125
• Docket Number: 1,685.
• Parties: BLAYLOCK v. INCORPORATED TOWN OF MUSKOGEE.
• Decision Date: 28 July 1902

117 F. 125

BLAYLOCK
v.
INCORPORATED TOWN OF MUSKOGEE.

No. 1,685.

United States Court of Appeals, Eighth Circuit.

July 28, 1902

Thomas H. Owen and William T. Hutchings, for plaintiff in error.

Nathan A. Gibson, for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District judge.

SANBORN, Circuit Judge.

This writ of error challenges the judgment of the court of appeals of the Indian Territory affirming the judgment of the United States court in the Indian Territory for the Northern district, which sustained a demurrer to a complaint against the incorporated town of Muskogee for injuries inflicted upon the plaintiff by the negligence of the municipality in the care of its sidewalks. The [117 F. 126] case presents but one question, and that is whether or not municipalities governed, as the defendant was, by chapter 29 of Mansfield's Digest of the Laws of Arkansas, which was made a part of the laws of the Indian Territory (chapter 15, Ind. T. Ann. St. 1899), by the act of congress of May 2, 1890 (26 Stat. 94, c. 182, Sec. 31), are liable for injuries resulting from their negligence in the care of the sidewalks upon their streets. The more reasonable rule-- the rule sustained by the supreme court and by the great weight of authority-- undoubtedly is that a municipality which is invested with the power and charged with the duty to make and repair its streets and sidewalks is liable to any individual for the injury which he sustains from its negligence in the exercise of this power or in the discharge of this duty. 2 Dill.Mun.Corp. (3d Ed. §§ 1017, 1018; Barnes v. District of Columbia, 91 U.S. 540, 550, 551, 23 L.Ed. 440; City of Detroit v. Osborne, 135 U.S. 492, 496, 10 Sup.Ct. 1012, 34 L.Ed. 260; Madden v. Lancaster Co., 65 F. 188, 191, 192, 12 C.C.A 566, 569. But the supreme court of the state of Arkansas had adopted and affirmed the converse of this rule prior to the enactment in the Indian Territory of chapter 29 of Mansfield's Digest of the Laws of Arkansas (chapter 15, Ind.T.Ann.St. 1899). Arkadelphia v. Windham, 49 Ark. 139, 4 S.W. 450, 4 Am.St.Rep. 32; City of Ft. Smith v. York, 52 Ark. 84, 12 S.W. 157. When this chapter was made a part of the laws of the Indian Territory by the act of congress of May 2, 1890, it was, therefore, the established rule in the state of Arkansas, settled by the uniform decisions of its highest judicial tribunal, that corporations empowered to make and maintain streets and...