City of Shawnee v. Drake

• Decision Date: 29 January 1918
• Docket Number: 6643.
• Citation: 171 P. 727,69 Okla. 209,1918 OK 59
• Parties: CITY OF SHAWNEE v. DRAKE.
• Court: Oklahoma Supreme Court

171 P. 727

69 Okla. 209, 1918 OK 59

CITY OF SHAWNEE v. DRAKE.

No. 6643.

Supreme Court of Oklahoma

Jan. 29, 1918

Rehearing Denied March 26, 1918.

Syllabus by the Court.

"One who goes upon the premises of another in a common interest or to a mutual advantage is there under the implied invitation of the owner." A., T. & S. F. R. R. Co. v Cogswell, 23 Okl. 181, 99 P. 923, 20 L. R. A. (N. S.) 837.

Where according to a general plan for the improvement of a city street, a space left within its bounds between a portion paved for a roadway and the sidewalks is set apart as parking, primarily, at least, for ornamentation rather than travel, the maintenance thereof in a condition attractive and pleasing to the eye may be regarded as of common interest and mutual advantage to the city and abutting property owners and where the city makes no provision to that end, but for a number of years the property owners mow the grass upon such parking, an invitation so to do will be implied on the part of the city.

Such invitation, from its nature, cannot, in reason, be considered as restricted to the person of such an owner, but must be held to include his servant employed for the specific purpose.

Where a city invites the use of its premises by one for a common interest and mutual advantage, it owes him the duty of exercising ordinary care to prevent his injury by keeping the premises in a condition reasonably safe for such use; and a breach of such duty constitutes actionable negligence.

Evidence examined, and held, that the trial court correctly refused to direct a verdict for defendant.

Commissioners' Opinion, Division No. 3. Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge.

Action by Jordan Drake against the City of Shawnee. Judgment for plaintiff, and defendant brings error. Affirmed.

W. T. Williams, of Shawnee, for plaintiff in error.

Blakeney & Maxey, of Tulsa, and Abernathy & Howell, of Shawnee, for defendant in error.

BLEAKMORE C.

This action seeking recovery for personal injuries was commenced in the court below by Jordan Drake against the city of Shawnee. Upon trial to a jury, plaintiff obtained verdict and judgment for $1,500, and defendant has appealed.

Some years before the occurrences involved the city of Shawnee had caused one of its streets to be improved by paving a portion thereof and the laying of sidewalks, leaving a space of some 15 feet or more between the pavement and the walks for a grass plot or parking. The city also operated and maintained a system of waterworks, and at points in the parking 4 or 5 feet from the outer edge of the sidewalk opposite their property had installed meters for the measuring of water supplied to consumers. These meters were affixed to service pipes situate some 18 inches or 2 feet underground, and were surrounded and protected by a meter box, which consisted of a joint of tiling 18 inches in diameter and about 30 inches in length, extending to the surface of the parking. In the upper end of the tiling was a groove, into which was seated a metallic lid covering the same. It appears that the abutting owners along the street were accustomed to cut the grass on the parking in front of their lots.

On October 13, 1910, plaintiff was employed by one of such owners to mow the grass on the parking. In performing such service he stepped upon the lid covering a meter box, which was concealed from his sight by the grass, and by reason of the fact that such lid was not properly adjusted and fitted into the groove in the tiling made for that purpose, it turned with his weight and he fell with one foot and limb inside the tiling, and was injured. Within a few hours after his injury his employer examined the meter box and found that grass had grown over the rim of the tiling, and that dirt and dust had accumulated in the groove near the top thereof, into which the metal lid was designed to fit, to such an extent that the lid was thereby lifted or raised out of the groove. A portion of the testimony of this witness is as follows:

"A. I examined the meter to learn what had caused this accident, caused his fall, and found the tendrils or stems of the Bermuda had grown under the lid, so it wouldn't fit down in the flange made to retain it. Q. Now, in the flange you found that the tendrils of the grass had grown under into the place where the lid fit? A. It had either grown under or the lid had been placed down on them, they being long enough to reach under the lid. Q. Now, did you find any other substance in the flange or groove besides the grass? A. Well, dirt that would naturally accumulate from blowing. *** A. I found the grass had grown under the rim, or the lid had been placed down on the stems. *** Q. Now, did you notice how deep that flange was that holds the lid from being flush to the top? A. I didn't notice it at the time, but from my general knowledge, I am quite familiar with these, it is about from one-eighth to one-quarter of an inch deep. Q. And the runners of the grass had grown under there until it lifted the lid or raised the lid out of the groove? A. Yes, sir. Q. So it would slip? A. I can't say whether they had grown in there, or whether they were there when the lid was placed on. Q. There was grass enough on there to raise it from its place? A. Yes, sir. Q. You said something about dirt getting in there from the wind. State to the jury what you mean by that. A. We know this is a dusty country; whenever the wind blows, any grooves or exposed places that way will fill up with dust and become solid; that was the case of the rims I examined, mine and the one where Mr. Drake got hurt; they were within 3 feet of each other. Q. The dirt in there was enough to fill the groove in which the lid fit? A. Partially, yes, sir."

It also appears that the water meters were read regularly each month, and that in order to read the same it was necessary to remove the metal cover from the tiling. The last reading of the particular meter located in the box into which plaintiff fell was on September 24, 1910, and the city employé who performed this service testified that after reading such meter he replaced the metal lid so that it fit within the groove. His exact testimony in this regard is as follows:

"Q. I will ask you to tell the jury what was the condition of the groove there at that meter the last time you read it. A. Well, there was some grass around it. I never paid much attention. Q. When you went there, what did you do with reference to the grass? A. I kind of pulled it back, and some grass growed up over it around the edges a little. Q. Tell the jury what you did with that. A. I pulled the grass up, so I could get at it. Q. Do you mean to pull it up, or pull it out, or break it off? A. Pulled it off; yes, sir. Q. After you pulled it off, what did you do with it? A. Threw it off to one side. Q. I want you to tell the jury whether or not, when you replaced the lid at this time on the 24th day of September, you left grass in the groove there and placed the lid on top of it. A. No, sir. Q. Do you remember anything about the condition of this meter box at that time? A. No; only just like the rest of them. Q. Do you remember anything-you have no recollection or paid no particular attention to any part of it except putting the lid off and replacing it? A. Yes, sir. Q. At the time you read this meter on the 24th day of September, 1910, read this meter there, can you tell the jury what was the height and condition of the grass growing around that meter box? A. No, sir; I can't tell how high it was. Q. You didn't pay any attention? A. No, sir. Q. I will ask you to state whether or not, when you went there, you found any grass or runners of the grass growing between the lid or under the lid next to the rim. A. No, sir; I did not. Q. I will ask you to tell the jury whether or not, at the time you read this meter, you found that meter filled with dirt of any description. A. No, sir."

At the close of the evidence the court refused the request of defendant to direct a verdict in its favor. In the petition it is alleged:

"That the city of Shawnee, through its water department and officers in charge of said department, would at the end of each month read the said meters, which belonged to them, and after they had read the same would, instead of closing the said meter lid, as above described, negligently and carelessly fail to fit the same into the groove, so that it would be solid and

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