City of Hartshorne v. Carlomango

• Decision Date: 13 September 1955
• Docket Number: No. 36711,36711
• Citation: 287 P.2d 696
• Parties: CITY OF HARTSHORNE, a municipal corporation, Plaintiff in Error, v. Ernestina CARLOMANGO, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 696

287 P.2d 696

1955 OK 228

CITY OF HARTSHORNE, a municipal corporation, Plaintiff in Error, v. Ernestina CARLOMANGO, Defendant in Error.

No. 36711.

Supreme Court of Oklahoma.

Sept. 13, 1955.

Syllabus by the Court.

1. It is the duty of a municipal corporation to exercise ordinary care to maintain streets and sidewalks in a reasonably safe condition for ordinary use by the public.

2. The sufficiency of notice to fasten liability upon a city for defective sidewalk is a question of fact to be determined by a jury under all the circumstances surrounding the particular case. It is not essential that the corporation shall have actual notice. If the defective condition of the street or sidewalk has existed for such a period of time that by the exercise of ordinary care and diligence the city authorities should have repaired the defect and placed the street or sidewalk in a reasonably safe condition, and it fails to do so, then it is liable for any injuries that may be occasioned thereby by reason of such negligence, provided the injured party was in the exercise of ordinary care.

3. The defense of contributory negligence is a question of fact for the jury to determine under instructions from the trial court.

Appeal from the District Court of Pittsburg County; W. A. Lackey, Judge.

Action for damages for personal injuries. Plaintiff had judgment and defendant appeals. Affirmed.

B. S. Null, City Atty., Hartshorne, for plaintiff in error.

Brown, Brown & Brown, McAlester, by Lonnie W. Brown, McAlester, for defendant in error.

CORN, Justice.

Plaintiff brought this action to recover damages for personal injuries alleged to have resulted from defendant's negligence in permitting a dangerous condition to exist in a city sidewalk. The physical facts alleged to have created such condition, as disclosed by the pleadings and evidence, may be summarized in the following manner.

In Hartshorne, Oklahoma, one of the principal thoroughfares is a paved street designated as North 9th Street. A cement sidewalk 4 feet in width runs along the west side of the street, and plaintiff's residence is located upon this side of the street. In the vicinity of her home North 9th Street is bisected from east to west by a rock walled, open, drainage ditch, constructed by the W.P.A. in 1936, which serves as a part of the city drainage system. This ditch is approximately 7 feet wide and 5 feet deep. At the point where this ditch passes under the sidewalk a concrete slab extends approximately 2 additional feet to the west. Pedestrians traveling along the street necessarily cross over this concrete abridgement, since other drainage in this area leads into the big ditch in such manner as to prevent crossing at any other place in the immediate area except the sidewalk overpass. Plaintiff's residence is located on the west side of North 9th Street, and approximately 42 feet south of the ditch. Along the west edge of the sidewalk and north of her house is a growing hedge (1 1/2 feet high) which extends nearly to the drainage ditch. The street light nearest the ditch is located approximately 100 yards south, and on the opposite side of the street. There was testimony this light was not burning the night of the accident.

The night of November 7, 1952, plaintiff left her home and traveled north along the sidewalk until she crossed the overpass over the drainage ditch. In the course of the return journey she fell from the sidewalk into the drainage ditch and received painful and permanent injuries to her arm, as to the nature and extent of which no issue is presented on appeal.

The petition charged defendant, a city of the first class within the meaning of 11 O.S.1951 § 674, its agents, servants and employees, with negligence and lack of care in the maintenance of the unguarded walk, without which the accident would not have occurred; and that the facts and circumstances were, or by reasonable care and diligence should have been, known to defendant, within sufficient time prior to date of the injury to have repaired the condition or otherwise abated the existing nuisance.

The defendant answered by general denial and further plead contributory negligence. Plaintiff replied by general denial. The issues raised were tried to a jury.

In addition to the matters above related, the evidence also disclosed that the mayor and city councilmen knew the circumstances and condition of the walk prior to the date of plaintiff's accident; and, prior to the accident, no protective guard or hand-rail had been erected along the west edge of the abridgement. The evidence also showed the city had built and maintained the sidewalk....