City of McAlester v. Nelson
| Decision Date | 20 December 1960 |
| Docket Number | No. 38530,38530 |
| Parties | CITY OF McALESTER, Oklahoma, a Municipal Corporation, Plaintiff in Error, v. Minnie E. NELSON, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Where a defect in a sidewalk is so slight that reasonable and prudent men would not anticipate an injury from it, there is no liability on the part of a town for injuries suffered by a party as a result of such defect, but where the defect is of such character that reasonable and prudent men might differ as to whether the accident should have been anticipated from the defect, the case is generally one for the jury.
2. Record examined and held: There are no reversible errors, and the judgment is supported by the evidence.
Appeal from the District Court of Pittsburg County; W. A. Lackey, Trial Judge.
Action for damages for personal injuries. Judgment for plaintiff and defendant appeals. Affirmed.
Arnote, Bratton & Allford, McAlester, for plaintiff in error.
Robert J. Bell, Charles B. Tucker, McAlester, for defendant in error.
This action was brought by the plaintiff against the City of McAlester, Oklahoma, a municipal corporation, for recovery of damages for personal injuries alleged to have been caused by a fall she received at a point where a sidewalk intersects a public street in McAlester, Oklahoma, and on certain concrete and stone steps leading from the sidewalk to the street.
Plaintiff further alleges that as a result of said fall she received permanent injuries consisting of a broken right hip, severe strain of the muscles and ligaments of the back, left shoulder and neck and extreme nervous shock; that as a result of said injuries she had two major surgical operations, and that she was confined to the hospital at McAlester for thirty days and thirteen days respectively, and at the hospital in Ada for ten days, and that she is permanently disabled. Plaintiff further alleges that she had total medical expenses in the amount of $2,468.70 and asks $17,533.80 for loss of earning capacity and $25,000 for pain and suffering, for all of which she prays judgment in the amount of $45,002.50.
The answer of the defendant was, in effect, a general denial and a plea of contributory negligence.
The cause was tried to a jury and resulted in a verdict for the plaintiff for $1,518.55.
On appeal the defendant contends that there was no evidence introduced at the trial showing negligence on the part of the city, and the testimony and physical facts do not support a verdict against the city; that if any condition existed it was so slight that no careful or prudent person would reasonably anticipate any danger from its existence, and then under the law of Oklahoma, the city is not liable, and the court's failure to give requested instruction on trivial defects was prejudicial error; that the maintenance and care of sidewalks and streets in Oklahoma is a governmental function as distinguished from a corporate or proprietary function, and, therefore, the...
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McCathern v. City of Oklahoma City
...in steps created by earth and grass roots causing the steps to vary in depth three to six inches was not a trivial defect. City of McAlester v. Nelson, 1960 OK 262, ¶ 8, 357 P.2d 995, 49. The city, in its certiorari materials, did not contest COCA's ruling that the sprinkler head in contest......
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McCathern v. City of Oklahoma City, 2004 OK 61 (OK 7/13/2004)
...in steps created by earth and grass roots causing the steps to vary in depth three to six inches was not a trivial defect. City of McAlester v. Nelson, 1960 OK 262, ¶ 8, 357 P.2d 995, 49. The city, in its certiorari materials, did not contest COCA's ruling that the sprinkler head in contest......
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Zachary v. City of Sapulpa
...adequately reflect plaintiff's theory on appeal: Cleveland Trinidad Pav. Co. v. Mitchell, 42 Okl. 49, 140 P. 416 and City of McAlester v. Nelson, Okl., 357 P.2d 995. In the Mitchell case a company making street repairs under contract excavated an almost perpendicular step-off some four feet......
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Barnes v. City of Tulsa
...differ as to whether an accident should have been anticipated from the defect, the case is generally one for the jury. City of McAlester v. Nelson, Okl., 357 P.2d 995; Oklahoma City v. Banks, 175 Okl. 569, 53 P.2d 1120; Hale v. City of Cushing, 191 Okl. 137, 127 P.2d 818; City of Tulsa v. F......