City of Sapulpa v. Deason
| Decision Date | 21 December 1920 |
| Docket Number | 10817,11266. |
| Citation | 196 P. 544,81 Okla. 51,1920 OK 386 |
| Parties | CITY OF SAPULPA v. DEASON ET AL (TWO CASES). |
| Court | Oklahoma Supreme Court |
Rehearing Denied March 29, 1921.
Syllabus by the Court.
A municipal corporation is charged with the duty of maintaining its streets in a reasonably safe condition for travel, and rests primarily, as respects the public, upon the corporation; and the obligation to discharge this duty cannot be evaded, suspended, or cast upon others by any act of its own.
A rule of wide recognition regarding the granting of new trials on the ground of "newly discovered evidence" exacts that the evidence fulfill the following requirements: (1) It must be such as will probably change the result if a new trial be granted; (2) it must have been discovered since the trial; (3) it must be such as could not have been discovered before the trial by the exercise of due diligence; (4) it must be material to the issue; (5) it must not be merely cumulative to the former evidence; (6) it must not be to merely impeach or contradict the former evidence.
The defendant's demurrer to the evidence or motion for an instructed verdict at the close of the evidence is overruled where there is any competent evidence before the jury reasonably tending to support the verdict.
Where instructions given, when taken together and considered as a whole, fairly present the law of the case, they will be held sufficient. Instructions examined, and held to contain no prejudicial error.
Evidence examined, and held, that the verdict for $25,000 is excessive upon the facts proven, and that the judgment should be reversed and a new trial granted unless a remittitur is filed for all in excess of $15,000 and interest thereon from date of judgment.
Appeal from District Court, Creek County; Lusian B. Wright, Judge.
Action by Mrs. H. L. Deason and others against the City of Sapulpa. Judgment for plaintiff, a new trial was denied, and defendant appeals. A subsequent petition for new trial on the ground of newly discovered evidence was overruled by the trial court and from that order defendant appeals. Cases consolidated on appeal, and judgment affirmed on condition.
Leroy J. Burt and Robert B. Keenan, both of Sapulpa, for plaintiff in error.
W. T Banks, of Okemah, and Caruthers & Carter, of Okmulgee, for defendants in error.
This action was commenced in the court below by Mrs. H. L. Deason, widow of H. L. Deason, deceased, for herself and for her minor children, as next friend, Lyge, Roy Lee, Claude Lafayette, Harry Lou, and H. L. Deason, Jr., for use and benefit of the widow and said minor children, against the St. Louis & San Francisco Railway Company, a corporation, and the city of Sapulpa, a municipal corporation, defendants, for damages for the death of H. L. Deason, husband of Mrs. H. L. Deason, and father of said minor children.
The city of Sapulpa, a municipal corporation, defendant below, is the plaintiff in error in this court, and Mrs. H. L. Deason, for herself and her minor children, and the St. Louis & San Francisco Railway Company, a corporation, are defendants in error.
The defendant in error Mrs. H. L. Deason, for herself and her minor children, in her petition below alleged that the St. Louis & San Francisco Railway Company is a corporation chartered under the laws of some state other than Oklahoma, with its principal office at St. Louis, Mo., and with an agent at Sapulpa, Okl., and that it runs a line of railroad through Creek county, Okl., and through the city of Sapulpa; that the city of Sapulpa is a municipal corporation, a city of the first class in Creek county, Okl., and that the St. Louis & San Francisco Railway Company and the city of Sapulpa built and maintained a viaduct over the lines, switchyards, and yard switches on the line running west from the depot at Sapulpa; that said St. Louis & San Francisco Railway Company and the city of Sapulpa has entered into an agreement to build and maintain in safe condition said viaduct over said railroad yards connecting North Sapulpa with South Sapulpa; that said railway company and said city of Sapulpa did build said viaduct jointly, and they did agree to maintain said viaduct in safe condition for travelers to cross over said viaduct on foot or in any kind of vehicle; that on the 3d day of March, 1917, the date of the death of said H. L. Deason, Sr., and prior thereto, both the St. Louis & San Francisco Railway Company and the city of Sapulpa were guilty of negligence in maintenance of said viaduct roadway, in that they caused a cleat some 4 or 5 feet long and 4X4 inches square to be nailed down on the floor of the said viaduct in quartering position at a place where the bend of the viaduct is located; that the deceased, H. L. Deason, was going south over the viaduct on said date, driving a truck; that he met a car at the bend going north; that deceased kept to the right of roadway as per rules of road, and the front wheels of car driven by deceased, and carrying himself and son, struck the 4X4-inch cleat which was fastened to the floor of the viaduct roadway; that it caused the car of deceased to slue so that the front of his car struck the rail on the east side of roadway, breaking the rail and letting the car drop to the ground, instantly killing H. L. Deason, Sr.
The defendant in error Mrs. H. L. Deason in her petition below further alleged that both the St. Louis & San Francisco Railway Company and the city of Sapulpa were jointly and severally negligent and liable to Mrs. H. L. Deason and her minor children for the wrongful and negligent killing of the husband and father of Mrs. H. L. Deason and said minor children; that they were negligent in not properly maintaining said viaduct at said point in a manner that could insure the safety of people in crossing the same; that they were jointly negligent in fastening a 1 1/2 or 2X6-inch cleat on the surface of the viaduct roadway in such a way that the front wheels of said deceased's car caused his car to slue to one side and drop off the bridge, after breaking the wooden rails; that they were negligent in maintaining said viaduct in an unsafe condition to insure cars from going through the railing in that they caused said guard rails to be constructed and maintained of wood instead of iron or steel; that, if said guard rail had been of iron or steel, when the car slued and collided with the rail of said iron or steel, it would have "killed" said motor engine and stopped the said motorcar on the roadway; that said wooden guard rails at the place were rotten and unsafe, and that this fact was known to both the St. Louis & San Francisco Railway Company and the city of Sapulpa; that at the time of the death of said H. L. Deason, deceased, he was ______ years of age and was running a transfer business in the city of Sapulpa and was making net $20 per week; that, by reason of the wrongful death caused by the negligence of both the St. Louis & San Francisco Railway Company and the city of Sapulpa, she and her minor children were damaged in the sum of $60,000.
To this petition the plaintiff in error, the city of Sapulpa, filed a motion to strike out unnecessary parties. Same was by the court overruled. The plaintiff in error, the city of Sapulpa, then filed an answer, which is, omitting the caption, as follows:
"Comes now the city of Sapulpa, a municipal corporation, defendant herein, and for answer to the petition of the plaintiff alleges and states: (1) That it denies generally and specifically each and every allegation therein contained except as specifically herein admitted; (2) the defendant, the city of Sapulpa, admits that it is a municipal corporation, a city of the first class duly organized and existing under a charter from the government as provided for under the laws of the state of Oklahoma; (3) for further answer the city of Sapulpa alleges and states that the deceased, H. L. Deason, on the day and date of said alleged injury as set out in the plaintiff's petition, was guilty of negligence in this, to wit, that he was an inexperienced driver of a truck, and was particularly inexperienced with the truck he was driving at said time and place; that he was incompetent and unable to drive and operate said truck and in a safe and careful manner; that at said time and place he drove said truck at a high and dangerous rate of speed; that he then and there failed and neglected to control the speed of his car or truck and failed and neglected to keep his car upon the roadway of said viaduct and carelessly and negligently permitted said car under high speed to head into the railing constructed upon and around the said viaduct and be precipitated to the ground below; that, by reason of the fault, neglect, the carelessness and inexperience of the said H. L. Deason, said alleged injury occurred."
Trial was had before a jury, and on the 21st day of February, 1919, the jury returned a verdict in the sum of $25,000 in favor of the defendant in error Mrs. H. L. Deason and her minor children, and against the city of Sapulpa. Thereafter and within three days, to wit, on the 24th day of February, 1919, the plaintiff in error, the city of Sapulpa, filed a motion for new trial, same being as follows, omitting the caption:
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