City of Miami v. Finley

• Decision Date: 29 September 1925
• Docket Number: Case Number: 15751
• Citation: 1925 OK 770,112 Okla. 97,240 P. 317
• Parties: CITY OF MIAMI v. FINLEY.
• Court: Oklahoma Supreme Court

1925 OK 770

240 P. 317

112 Okla. 97

CITY OF MIAMI v. FINLEY.

Case Number: 15751

Supreme Court of Oklahoma

Decided: September 29, 1925

Commissioners' Opinion, Division No. 3.

Error from District Court, Ottawa County; J. J. Smith, Judge.

Action by Leo J. Finley against the City of Miami, Okla. Judgment for plaintiff, and defendant appeals. Affirmed.

Syllabus

¶0 1. Notice--"Constructive Notice."

Evidence of constructive notice presents a question of fact for the jury to determine, and is sufficient if reasonable time is shown in which the party charged could have known the thing complained of by the exercise of reasonable care and diligence.

2. Municipal Corporations--Liability for Dangers Near Sidewalk Proper.

The rule that requires a municipal corporation to exercise ordinary care to know the condition of its sidewalks and keep them in a reasonably safe condition for such use ( Bellevue Gas & Oil Co. v. Carr, 61 Okla. 290, 161 P. 203) is not to be confined solely to the sidewalk track, but is to be extended to dangers near or in proximity to the sidewalk.

3. Appeal and Error--Questions of Fact--Verdict--Value of Prospective Services of Minor Child.

The value of prospective services of a minor child during its minority is a question of fact for the jury, under the proper instructions of the court, and where the jury determines the question by their verdict and there is any competent evidence tending reasonably to support the verdict, the same will not be disturbed on appeal.

4. Damages--Personal Injury to Infant--Prospective Damages from Impaired Earning Capacity.

Prospective damages to an infant, however young, on account of impairment of earning capacity after the age of majority, and to the parent during minority, or in case of death, for a longer time, is a proper element of damage in a case of personal injury, and the rule applies although the minor has never earned anything, and although no one can tell with any certainty what his earning capacity will be.

5. Municipal Corporations -- Negligent Condition of Sidewalk--Instructions.

The instructions complained of, quoted in the opinion, were held to fairly state the law applicable to the case, and sufficiently clear to guide the jury in considering the question of negligence.

N. C. Barry, for plaintiff in error.

Frank Nesbitt, for defendant in error.

THREADGILL, C.

¶1 This action was brought to recover damages for the death of a girl child two years of age, caused by an uncovered water meter box located near the cement sidewalk on the parking between the sidewalk and the traveled street, into which the child fell head foremost and was drowned.

¶2 Plaintiff alleged that the said water box and meter were used by the defendant to sell and measure water to his customer, a resident of the city, who lived on the adjoining lot to plaintiff, and same was under the control of defendant, and the said water box was negligently left uncovered by the defendant, and said negligence was the proximate cause of the child's death, and resulting injury to plaintiff. The damages were alleged to be the loss of earnings of said child from 8 to 17 years, inclusive, in the sum of $ 8,040, and $ 200 as burial expenses, and the amount prayed for was $ 6,440.

¶3 Defendant answered by general denial and specially denied any negligence on its part as alleged by plaintiff's petition, and by pleading contributory negligence on the part of plaintiff, in permitting said child to "run over and about the streets of Miami, Okla., unrestrained and uncontrolled". These issues were tried to a jury March 19, 1924, and resulted in a verdict and judgment for plaintiff in the sum of $ 2,500, from which judgment defendant has prosecuted this appeal by petition in error and case-made.

¶4 1. Defendant's first contention is that the evidence was not sufficient to prove that it had notice of the uncovered water meter box, and therefore the court committed error in overruling its demurrer to the evidence, and in refusing to give its requested instructions for a verdict in its favor, and in overruling its motion for a new trial. To determine whether or not defendant's contention is correct requires an examination of the record as to what the evidence shows. The facts were substantially as follows: Plaintiff with his family, consisting of his wife and three children, the eldest child being six and the youngest two years of age, lived in a house on A street, southwest Miami, and had been living there about eight months at the time of the accident complained of. On the adjoining lot lived Robert Tuthill with his family. The lots were about 50 feet wide, the sidewalk in front was made of cement, and the street was a paved street, and the parking between the sidewalk and street was about nine feet, and the water meter box was an open cemented hole in the ground, the top of which was on a level with the ground, and the same was 18 to 24 inches long, 16 to 18 inches wide, 2 1/2 to 3 feet deep, situated within 2 1/2 to 3 feet of the public sidewalk, and within 6 to 6 1/2 feet of the paved street, within one-half block of the public ward school, within one block of Main street, within three blocks of the principal business center of the city, within three blocks of the residence of the superintendent of streets of the city, and under these circumstances had remained open without a cover for about eight months. There was some conflict in the evidence as to whether or not there was any sort of covering used for the box. Some of the witnesses, who testified they saw it often, said there was no covering, while the water meter reader said there was a board which was used in covering it partially. There was a low place in the sidewalk in front of the said water box, and it had rained the night before the accident complained of, and water had settled in the low place, and it appears that the water meter box was partially filled with water. The child was following her two sisters who had run across the street, and it appears that in avoiding the water on the sidewalk, she fell into the meter box on the parking and was drowned.

¶5 It is contended that the knowledge of the water meter reader was not notice to the city since no duty was imposed upon him of keeping it in repair. He was only employed to read the meter and report the same to the proper authority, but it makes no difference whether this knowledge is imputed to the city or not, since it is the law in this jurisdiction that considerable time in such a case would have the same force and effect in binding the defendant as actual notice. In the case of the Town of Norman v. Teel, 12 Okla. 69, 69 P. 791, the rule is stated as follows:

"The sufficiency of notice to fasten liability upon a city for a 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 could 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."

¶6 Again in the case of City of Cushing v. Bowdlear, 74 Okla. 138, 177 P. 561, the rule is stated as follows:

"It is not necessary that a city have actual notice of the condition of its streets. It is sufficient that the defective condition of the street had existed for such a period of time that the city, by the use of ordinary care, could have discovered the same."

¶7 See also, Tulsa v. Wells, 79 Okla. 39, 191 P. 186; City of Lawton v. Hills, 53 Okla. 243, 156 P. 297. These same cases hold that whether or not the notice to the city is sufficient is one of fact for the jury under the evidence in the case. Under these authorities, applied to the evidence in the case at bar, we think the defendant had sufficient notice of the condition of the water meter box to render it liable for the injury complained of.

¶8 2. In the next place defendant contends that it did not own the water meter box and that same was not on the sidewalk prepared for pedestrians, nor on that part of the street usually traveled by vehicles, but on the parking, which was not set apart for traveling, and therefore it should not be held liable. We cannot agree with this contention. The rule that requires a municipal corporation to exercise ordinary care to know the condition of its sidewalks, in respect to their safety for ordinary proper use, and keep them in a reasonably safe condition for such use ( Bellevue Gas & Oil Co. v. Carr, 61 Okla. 290, 161 P. 203), is not to be confined solely to the sidewalk track, but is to be extended to dangers near or in proximity to the sidewalk. In the case of Oklahoma City v. Meyers, 4 Okla. 686, 46 P. 552, the rule is stated as follows:

"If a dangerous excavation is in such close proximity to the sidewalk as to make traveling on it dangerous, it matters not to the person injured that is may not have been within the limits of a street. The safety of the traveler is what the law seeks to protect and if he had the right to the use of the street, he may presume that the authorities in control have provided a safe place for travel. It cannot be said that a safe place for travel has been provided if abutting the sidewalk or in close proximity thereto there is permitted a deep excavation which even the most careful of

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