City of Seminole v. Mooring

• Decision Date: 28 March 1939
• Docket Number: Case Number: 28661
• Citation: 185 Okla. 359,1939 OK 172,91 P.2d 1091
• Parties: CITY OF SEMINOLE v. MOORING
• Court: Oklahoma Supreme Court

1939 OK 172

91 P.2d 1091

185 Okla. 359

CITY OF SEMINOLE v. MOORING

Case Number: 28661

Supreme Court of Oklahoma

Decided: March 28, 1939

Syllabus

¶0 1. MUNICIPAL CORPORATIONS--Question for Jury Whether City Was Negligent in not Maintaining Signs or Barriers at Precipitous End of Street.

Whether city was negligent in not maintaining warning signs or barriers to prevent travelers from driving from street over a precipitous embankment was a question for the jury.

2. SAME--Duty of City to Protect Traffic From Dangerous Places Near Street Though Outside City Limits.

A city's duty to maintain its streets In a reasonably safe condition is not discharged by keeping the traveled portion free from obstructions and defects, but requires the use of ordinary care to protect lawful traffic from dangerous places near such traveled portion, though outside of city limits.

3. SAME--Admissibility of Evidence of Prior Accidents at Place of Injury.

Evidence of prior accidents may be shown for the purpose of showing that the city had notice of the dangerous character of the street.

4. DAMAGES--$5,000 for Personal Injuries Held not Excessive.

Under the facts presented, the judgment for $5,000 for injuries received is not excessive.

Appeal from District Court, Seminole County; H. H. Edwards, Judge.

An action by D. C. Mooring against the City of Seminole. Judgment for plaintiff, and defendant appeals. Affirmed.

George E. Norvell and Woodson E. Norvell, for plaintiff in error.

John W. Whipple, Geo. C. Crump, and H. W. Carver, for defendant in error.

DANNER, J.

¶1 The plaintiff, D. C. Mooring, brought suit against the city of Seminole to recover damages alleged to have been sustained by reason of defendant's negligence in failing to keep and maintain its streets in a safe and proper condition for public travel and use. In the petition it is alleged:

"That Second street in the city of Seminole, is, and was at all times hereinafter mentioned, an open, public highway extending through said city, and was an important and frequently traveled way.

"That said highway and said street is and was at all times hereinafter mentioned, under the control and supervision of said defendant, the city of Seminole; and that it was the duty of said defendant to keep and maintain said highway and street at all times in a safe and proper condition for public travel and use.

"That on the 17th day of May, 1934, and for a long time prior thereto said Second street at the point where it intersected Strothers street came to an abrupt end and on the north side of said Strothers street there was a steep, unguarded embankment of some fifteen or twenty feet and said street at said point was unprotected by barriers, guards, danger lights, or any warning or signal of any nature whatsoever that would put motorists on their guard, thus making said street unsafe and extremely dangerous to the life and limb of all motorists using the same; that said Second street had no warning sign or signal at the bottom of a hill just south of the north end of said street indicating that said street came to an abrupt end at the brow of said hill; of the condition of said street and said hill, its abrupt blind ending and unguarded embankment the defendant had actual notice or with the exercise of reasonable care and diligence could have ascertained the same, but the defendant, negligently, carelessly, and knowingly permitted and suffered said dangerous hazard to thus become and remain in said defective and dangerous condition.

"That on or about 11:30 a. m., on the 17th day of May, 1934, this plaintiff was proceeding carefully and lawfully along said Second street, driving his automobile, a 1930 model, Chevrolet coupe, going in a northerly direction on said street; that on said occasion plaintiff had every reason to believe that said highway and said street was safe and extended beyond the brow of said hill; there was no appearance of danger; there was no warning or danger signals at the bottom of the hill just south of the end of said Second street. That while plaintiff was driving and propelling his said automobile along said street, it was necessary for him to shift into second gear and accelerate his speed to ascend the hill at the north end thereof, and when he came to the top of the said hill and not having been warned and not being aware of the end of said street or the precipice beyond the same, his car plunged headlong over said precipice, landing at the bottom thereof upside down and lodged against a tree; that by reason of the lack of warning or danger signals at the bottom of said hill on the north end of said Second street, and by reason of the speed necessary to use in ascending said hill with his automobile and by reason of the lack of warning or danger signal as he approached the top of said bill on said street and by reason of the lack of barriers or guards along said embankment, said plaintiff and plaintiff's automobile was violently precipitated and thrust over said precipice as hereinbefore alleged and sustained vital injuries to his person. * * *"

¶2 In its answer the defendant denies generally the allegations in the petition and affirmatively alleges contributory negligence in the plaintiff. The judgment, based on a jury verdict, was in favor of the plaintiff. From the judgment and order overruling its motion for a new trial the defendant appeals, assigning various grounds for reversal, which assignments are presented under the following propositions:

"The petition fails to state sufficient facts to charge the defendant municipality with any liability; the evidence offered by plaintiff was insufficient as against the demurrer thereto;

"Upon all the evidence, a verdict should have been directed in favor of defendant.

"Under the law and the evidence, the court should have refused to enter judgment upon the verdict of the jury."

¶3 The evidence shows that the plaintiff, a stranger to the streets of the defendant city, was driving north on Second street at a speed of approximately 30 miles an hour and at the intersection of Second street and Strothers avenue discovered that Second street ended abruptly immediately north of Strothers avenue; and in attempting to stop his automobile both the plaintiff and the car hurtled over an embankment 15 or 20 feet high into a tree on the north side of Strothers avenue, resulting in the injury complained of. The city limits of Seminole end at the center of Strothers avenue; an improved street 36 feet wide extending east and west intersecting with Second street. The embankment where the accident occurred is located 18 feet north of the center of Strothers avenue immediately outside the traveled portion of that thoroughfare.

¶4 Particularly, the defendant argues that it is not liable for the reason that it is not alleged in the petition, or shown in the proof, that the place where the injury occurred is within the city limits of the city; that under the circumstances the city owed no duty to the public, or to the plaintiff, to erect and maintain signs or barriers at the place where the accident occurred.

¶5 We have held that a municipality must exercise ordinary care to keep its sidewalks and streets in a reasonably safe condition, and is liable for injuries caused by the failure to do so. Town of Norman v. Teel, 12 Okla. 69, 69 P. 791; City of Stillwater v. Swisher, 16 Okla. 585, 85 P. 1110; Town of Canton v. Mansfield, 108 Okla. 60, 233 P. 1071; City of Tulsa v. Wells, 79 Okla. 39, 191 P. 186.

¶6 In Blashfield's Cyclopedia of Automobile Law & Practice, vol. 5, page 398, it is said:

"A municipality is bound to provide barriers or guards where the street itself is unsafe for travel by reason of the presence or the close proximity of excavations, embankments, deep water, or other pitfalls or dangers. This duty extends to dangerous places adjacent to as well as upon the highway.

"In determining whether it is necessary in a particular case, that a barrier or railing should be erected to make the highway safe, the true test is not the distance front the highway of the dangerous object or

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