City of Tulsa v. Roberts
| Decision Date | 01 May 1940 |
| Docket Number | Case Number: 29434 |
| Citation | 107 P.2d 1006,1940 OK 230,188 Okla. 249 |
| Parties | CITY OF TULSA v. ROBERTS |
| Court | Oklahoma Supreme Court |
¶0 1. MUNICIPAL CORPORATIONS--14-inch drop from curb level to catch basin near street intersection held not dangerous defect rendering city liable for injuries to pedestrian.
The construction of a curb drain or catch basin near a street intersection resulting in a 14-inch drop from curb level to street pavement level does not constitute such a manifest danger as to amount to negligence rendering city liable for damages for personal injury.
2. SAME--Evidence rendering question of negligence one of law for court.
Where the evidence is such that but one inference can be drawn therefrom, the question of negligence, in respect to particular alleged defect in a street or intersection or in its pavement, is a question for the court as a matter of law.
Appeal from District Court, Tulsa County; Prentiss E. Rowe, Judge.
Action by Fred E. Roberts against the City of Tulsa, for personal damages. Judgment for plaintiff, and defendant appeals. Reversed
H. O. Bland, Milton W. Hardy, and E. M. Gallaher, all of Tulsa, for plaintiff in error.
B. A. Hamilton and S. J. Clendinning, both of Tulsa, for defendant in error.
¶1 This is an appeal from a verdict and judgment rendered in the district court of Tulsa county, Okla., against the city of Tulsa, for injuries sustained by plaintiff by reason of a fall occasioned when plaintiff stepped from curb level to street level near or directly over a catch basin or street drain, which had been constructed near the street intersection. A part of said drain extended over into the pedestrian cross-way marked off by the city, but that part of the drain was immediately behind a large signal light post. The distance from the curb level to street level at this exact point was 14 inches.
¶2 The question presented here for our determination is whether the trial court committed error in overruling defendant's motion for directed verdict.
¶3 A city has two classes of powers--the one legislative, public, governmental, in the exercise of which it is a sovereignty and governs its people; the other proprietory, corporate, or quasi-private, conferred upon it, not for the purpose of governing its people, but for the private advantage of the inhabitants of the city and of the city itself as a legal personality.
¶4 We have heretofore held that a city is not liable for negligence of employees in cleaning streets and sewers, since the same is the discharge of a governmental function. Spaur et ux. v. City of Pawhuska, 172 Okla. 285, 43 P.2d 408.
¶5 A catch basin or street drain is constructed for the purpose of draining the streets and thereby help in keeping them in a sanitary condition. This court has heretofore followed the general rule that in such construction the city has discretion and latitude in determining and fixing grades and elevations, and drainage depressions, and that the city is not liable as negligent, unless the plan or method of construction is palpably unsafe or creates a manifest danger resulting from a type of construction which all men of reasonable prudence and intelligence would agree was unjustified and unsound planning. See Lewis v. Tulsa, 179 Okla. 176, 64 P.2d 675; Oklahoma City v. Cantrell, 181 Okla. 56, 72 P.2d 381; City of Ada v. Burrow, 171 Okla. 142,42 P.2d 111.
¶6 In the Lewis Case, supra, the perpendicular drop was about the same as here. In the Cantrell Case, supra, we held that in such a case, where only one inference could be drawn from the evidence concerning whether city was negligent, the question of negligence became one of law for the court.
¶7 We regard those cases as decisive of the question, demonstrating that the trial court erred in overruling defendant's motion for a directed verdict.
¶8 The judgment is therefore reversed.
CORN and GIBSON, JJ., absent.
¶1 I am unable to agree with the conclusion announced by a majority of my associates in this case, and deem the matter of sufficient importance to warrant an analysis of the case in a dissenting opinion.
¶2 In this state the maintenance of streets is a proprietary function of government, and the failure of a municipality to properly perform its duties in connection therewith may constitute the basis of civil liability.
¶3 There are, however, two rules recognized by this court, each of which, when applicable, operates to excuse the municipality from liability.
¶4 The one is sometimes known as the "trivial defect" rule, and was first specifically recognized in this jurisdiction in City of Tulsa v. Frye, 165 Okla. 302, 25 P.2d 1080. The other is sometimes referred to as the "adopted plan" rule, and excuses defects inherent in a plan of construction adopted by a city. Its application is exemplified by Lewis v. City of Tulsa, 179 Okla. 176, 64 P.2d 675.
¶5 The majority opinion bases the case upon the latter rule, although there is some language in the first paragraph of the syllabus which indicates that the "trivial defect" rule may also have claimed a degree of consideration.
¶6 It is my purpose in this dissent to demonstrate that neither of the foregoing rules operates to discharge the city from liability.
¶7 The adopted plan theory has no application because no plan was shown to have been adopted and the defect was too great to be excused on the theory that it constituted a trivial defect.
¶8 A more detailed analysis of the facts will be helpful, and is therefore incorporated in this dissent.
¶9 The defendant city does not question that plaintiff's injuries were of sufficient magnitude to justify the damages awarded, thus eliminating the necessity of a detailed discussion of the nature and extent of such injuries in this opinion.
¶10 Plaintiff's injury was sustained on the 1st day of March 1936, at the intersection of First and Main streets in the city of Tulsa. Main street extends from north to south, and First street from east to west. Traffic is controlled at the intersection by means of mechanically operated lights denoting the direction which traffic may move. On the day in question, at about 3 o'clock in the afternoon, plaintiff was standing on the curb on the east side of Main street immediately south of the street intersection at the point used by pedestrians in crossing Main street from east to west. He was waiting for the light to change. The light changed. He stepped from the curb, fell, and injured himself. Immediately under and adjacent to the curb where he was standing the city had constructed a sloping street catch basin and surface drain to prevent the escape of surface drainage into the storm sewer system. The grate of the drain and the portion of the catch basin immediately adjacent thereto was 14 inches below the level of the top of the curb. The north edge of the grate of the drain corresponded with the property line fronting First street, thus a projection of the sidewalk line would coincide with the edge of the drain. The catch basin projected northward 42 inches, or three and one-half feet, into the normal line of foot traffic sloping rather abruptly upward. It sloped upward in the 42 inches a distance of 10 1/2 inches, thus causing the drop of the step from the curb onto the street to vary from 3 1/2 inches to 14 inches in the north 42 inches of the portion of the street used by pedestrians for crossing. The plaintiff stepped into the catch basin near the grate.
"The defect as above described is graphically illustrated by a picture appearing at page 93 of the record."
¶11 At this point it may be mentioned that the city had caused white lines to be drawn, indicating or limiting the portion of the street to be used by pedestrians. It had not, however, by such lines attempted to route traffic away from the drain and catch basin, but on the contrary had by means thereof widened the portion of the street to be used by pedestrians, the white line being south of the imaginary line created by projecting the property line. The white line bisected the drain grate. Although the existence of the white line was referred to in the plaintiff's pleading, in the evidence, and in the court's instructions, no specific legal question was raised by the parties in the trial court in connection therewith, nor does the same constitute the basis of a legal issue in this court, although loose allusions are made in the briefs to its existence.
¶12 Since it might well be urged that the white line was used by the city as a means of directing traffic (a strictly governmental function), it might be contended that civil liability could not be predicated on an alleged improper use thereof, if such question were properly presented by the record in this case and the parties to this appeal. Kirk et al. v. City of Muskogee, 183 Okla. 536, 83 P.2d 594. However, since the city did not attempt to use the white line as a means of directing traffic around the allegedly dangerous portion of the crossing, the use thereof cannot be claimed as a defense, and since the city does not contend it was improperly injected into the case as a factor to determine liability, the necessity of discussing the point is eliminated.
¶13 The plaintiff in this case slipped into that portion of the catch basin which projected into the portion of the street normally used as a crossing independent of extended width thereof indicated or created by the white line.
¶14 Thus the right of the plaintiff to recover is based upon the theory that the city created and maintained a dangerous condition on its street by constructing the catch basin at such a point as to traverse in part the portion of the street used by pedestrians, creating an unusual and deceptive drop at the point in the street previously described, in violation of its duty to use reasonable and ordinary care to maintain its...
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Walker v. Reeves, 33926
...v. Pinkley, 158 Okl. 104, 12 P.2d 229, as well as a perpendicular drop of 14 inches from curb to street level, City of Tulsa v. Roberts, 188 Okl. 249, 107 P.2d 1006. The evidence disclosed that plaintiff was thoroughly familiar with the sidewalk at this point and had traveled along the incl......
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