City of Lawton v. Hills
| Decision Date | 14 March 1916 |
| Docket Number | 5972. |
| Citation | 156 P. 297,53 Okla. 243,1916 OK 333 |
| Parties | CITY OF LAWTON v. HILLS. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A motion to make more definite and certain is addressed to the sound discretion of the court, and a ruling thereon in the absence of an abuse of such discretion that results prejudicially to the party complaining will not be disturbed.
Under section 5248, Rev Laws 1910, the certificate of the trial judge is prima facie evidence of the facts therein recited but is not conclusive, and will be overcome when the case-made affirmatively shows on its face that the certificate is incorrect in some material respect.
Where it affirmatively appears that all the evidence upon any question introduced at the trial is not included in the case-made, and a determination thereof requires a consideration of the evidence, the Supreme Court will not review such question.
The sufficiency of notice to fasten liability upon a city for defective sidewalk is a question of fact to be determined by the jury under all the circumstances of the particular case. It is not necessary that the city have actual notice. If the defective condition has existed for such a period of time that by the exercise of ordinary care and diligence the city authorities could have repaired the defect, and it fails to do so, it is liable for any injuries occasioned thereby provided the injured party was in the exercise of ordinary care.
Held, under the facts stated in the opinion, that a verdict for $5,000 was not excessive.
Error from District Court, Comanche County; J. T. Johnson, Judge.
Action by J. C. Hills against the City of Lawton, Okl., a municipal corporation. Judgment for plaintiff, and defendant brings error. Affirmed.
Whalin & Burton, of Lawton, for plaintiff in error.
W. C Stevens and C. M. Myers, both of Lawton, for defendant in error.
This suit was commenced in the district court of Comanche county by the defendant in error against the city of Lawton, plaintiff in error, for damages alleged to have occurred by reason of the defective condition of a sidewalk in that city. Trial resulted in a verdict for plaintiff, and defendant brings the case here. For convenience the parties will be referred to as they appeared in the trial court.
The first error assigned is that the court erred in not sustaining defendant's motion to make the amended petition more definite and certain, and in support of this assignment it is claimed that the amended petition did not describe any hole in the sidewalk, and that defendant was entitled to know the size of the hole; i. e., how long, how wide, and particularly how deep. The petition alleges that said sidewalk, "because of its flimsy construction, the cheap and faulty material used in its construction, and the great amount of travel thereon, became defective, unsafe, and out of repair; * * * that a large slab of cement became loose and broken on the upper surface of said sidewalk, and a large hole was caused thereby." And after appropriate allegations charging notice of such defective and dangerous condition of said sidewalk the petition further alleged that plaintiff, while in the exercise of due care, was lawfully passing along and over said sidewalk, when he stepped into the hole hereinbefore mentioned with his left foot, in such a manner that his right foot was thrown and caught under the slab of cement which had been broken off the upper surface of said sidewalk, said slab being from 1 to 1 1/2 inches in thickness and from 2 to 3 feet in width, and from 2 1/2 to 3 1/2 feet in length, causing plaintiff to be violently thrown, etc. It is alleged that the hole in the sidewalk was caused by the slab which had become loose and broken, and the specific dimensions of the slab are alleged as above set out. These allegations were a sufficient description of the place of the alleged injury. The motion to make more definite and certain was addressed to the sound discretion of the court, and a ruling thereon in absence of an abuse of such discretion that results prejudicially to the party complaining will not be disturbed. Ft. Smith & Western Ry. Co. v. Ketis, 26 Okl. 696, 110 P. 661; London v. Moorehead, 34 Okl. 701, 126 P. 1027; City of Chickasha v. Looney, 36 Okl. 155, 128 P. 136; Frey v. Failes, 37 Okl. 297, 132 P. 342.
It affirmatively appears that the case-made does not contain all the evidence. Certain photographs of the place where the injury is alleged to have occurred, taken shortly thereafter, were introduced in evidence, but are not included in the case-made, and another exhibit offered in evidence has been omitted.
The certificate of the trial judge recites that the case-made contains all the evidence, and while by section 5248 this certificate is made prima facie evidence of the facts therein recited, this certificate is not conclusive, and the prima facie effect thereof will be overcome where the case-made shows on its face that the certificate is incorrect in some material respect. Neither will a certificate by counsel that all the evidence is contained in the case-made supply the omission. Worrell et al. v. Fellows, 39 Okl. 796, 136 P. 750. Nor will such certificate by the stenographer who transcribed his shorthand notes. Sawyer Lbr. Co. v. Champlain Lbr. Co., 16 Okl. 90, 84 P. 1093; Martin v. Gassett, 17 Okl. 177, 87 P. 586; Wagner v. Sattley Mfg. Co., 23 Okl. 52, 99 P. 643; Finch et al. v. Brown, 27 Okl. 217, 111 P. 391.
When it affirmatively appears that all the evidence upon any question introduced at the trial is not included in the case-made, this court will not review such question, depending entirely upon the facts for its determination. Sawyer Lbr. Co. v. Champlain Lbr. Co., supra; Martin et al. v. Gassett, supra; Perkins v. Baker, 41 Okl. 288, 137 P. 661; Weleetka L. & W. Co. v. Castleberry, 42 Okl. 745, 142 P. 1006.
In this state of the record the question as to whether the defendant was negligent in permitting said defective condition of the sidewalk to exist and whether under all the evidence in the case the court committed error in submitting the...
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