City of Tulsa v. Wells

• Decision Date: 08 June 1920
• Docket Number: 10586.
• Citation: 191 P. 186,79 Okla. 39,1920 OK 234
• Parties: CITY OF TULSA v. WELLS.
• Court: Oklahoma Supreme Court

191 P. 186

79 Okla. 39, 1920 OK 234

CITY OF TULSA v. WELLS.

No. 10586.

Supreme Court of Oklahoma

June 8, 1920

Rehearing Denied July 13, 1920.

Syllabus by the Court.

Where several persons unite in an act which constitutes a wrong to another, the law permits all the wrongdoers to be proceeded against jointly, also leaves the party injured at liberty to pursue any one of them severally, or any number less than the whole, and to enforce his remedy regardless of the participation of the others. The rules regarding remedies which are applied to breaches of contracts are obviously inapplicable, but the rule is that the party injured may bring separate suits against the wrongdoers and proceed to judgment in each, and no bar arises as to any of them until satisfaction is received.

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.

In a legal action founded upon tort, against a municipal corporation, based upon the neglect by the defendant of the duty imposed by law to keep its streets in a reasonably safe condition for the protection of the traveling public, and where the testimony showed that such neglect of the defendant was equally chargeable to a street railway company, and that the plaintiff had brought an action against said company for damages therefor, and the cause had been tried and resulted in a verdict in favor of the defendant from which the plaintiff had appealed and the appeal was then pending, and the defendant in the instant case pleaded the verdict and judgment in the trial court as a bar, held: (a) The doctrine of election of remedies did not apply; and (b) that the judgment in the former action was not final as to such action, the doctrine of lis pendens applied.

While a provision of a city charter providing that, before the city shall be liable for damages, the person injured or some one in his behalf shall give the mayor or city auditor notice in writing of such injury within 30 days after the same has been received, stating where and how the injury occurred and the extent thereof, may be valid, the failure to give such notice may be excused on account of the incompetency of the injured party by reason of infancy or effect of such injuries rendering him mentally and physically incompetent to give such notice.

Where a city charter provided that the city should not be liable for damages for injuries to person or property arising from or occasioned by any defect in any public street, highway, or grounds, or any public work of the city unless the specific defect causing the damage or injury shall have been actually known to the mayor or city engineer by personal inspection for a period of at least 24 hours prior to the occurrence of the injury or damage, unless the attention of the mayor or city engineer shall have been called thereto by notice thereof, in writing at least 24 hours prior to the occurrence of the injury or damage, and proper diligence has not been used to rectify the defect after actually known or called to the attention of the mayor or city engineer as aforesaid held: (a) Such provision so far departs from reasonableness as to amount to a denial of justice, and is therefore void, and may not be enforced by the courts of this state; and (b) that a city is chargeable with notice of a dangerous defect in its streets, although actual notice may not have been brought home to it; (c) if the evidence shows that such a state has continued for a sufficient length of time so that the city by exercising ordinary care might have learned of its condition, and not to know such fact would be negligence on the part of the city, and a charge to the jury to that effect was properly given.

In a civil action triable to the jury, where there is competent evidence reasonably tending to support the verdict of the jury, and no prejudicial errors of law are shown in the instructions of the court, or its ruling on law questions presented during the trial, the verdict and the finding of the jury will not be disturbed on appeal.

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.

In an action for personal injury, a verdict will not be set aside for excessive damages, unless it clearly appear that the jury committed some gross and palpable error, or acted under some improper bias, influence, or prejudice, or have totally mistaken the rules of law by which damages are regulated.

Error from District Court, Tulsa County; Ernest B. Hughes, Judge.

Action by Paul Wells, a minor, by Catherine Wells, next friend against the City of Tulsa. Judgment for plaintiff, and defendant brings error. Affirmed.

Where several persons unite in an act which constitutes a wrong to another, the law permits all the wrongdoers to be proceeded against jointly and also leaves the party injured at liberty to pursue any one of them severally, or any number less than the whole, and to enforce his remedy, regardless of the participation of the others.

Edward P. Marshall, of Tulsa, for plaintiff in error.

H. B. Martin, of Tulsa, Roy F. Ford, of Oklahoma City, and J. G. Thompson, for defendant in error.

JOHNSON J.

This is an appeal from the district court of Tulsa county; Hon. Ernest B. Hughes, Judge.

On May 10, 1918, this action was commenced in the district court of Tulsa county, Okl., by Paul Wells, a minor, by Catherine Wells, his mother, and his next friend, as plaintiff, against the city of Tulsa as defendant. For the sake of convenience the parties will be hereinafter referred to as they respectively appeared in the trial court.

The plaintiff brought this action to recover for certain personal injuries which he alleges that he received upon the streets of the city of Tulsa on the 14th day of July, 1917, by reason of the negligence of the defendant; the allegations contained in his amended petition being, in substance:

"That upon said East Third street, in the city of Tulsa, between Boston avenue and Main street, there are laid and maintained parallel tracks of the Tulsa Street Railway Company, and that said East Third street is paved, and that between the rails of said tracks of the street railway company and for a space of 10 or 12 inches on the outside of the rails of said tracks the paving consists of brick, and it is alleged that said brick paving was constructed in said street in a rough and uneven condition a long time prior to July 14, 1917, at the instance of the defendant and under its direction, supervision and control; and that on the said 14th day of July, 1917, the brick paving on both sides of the north rail of the north track of the said railway company on said Third street, at a certain point where the injury is alleged to have occurred, was in a rough, uneven, dangerous and unsafe condition, and that the defendant city had failed to maintain the said paving in a reasonably safe condition, and that the condition of the paving at said place was known to the city of Tulsa or could have been discovered by said defendant by the exercise of ordinary care on its part, and which conditions were unknown to the plaintiff. It is alleged that the plaintiff while riding along said street and between the tracks of the said railway company, on a bicycle, about 8 o'clock p. m. on the said 14th day of July, 1917, attempted to turn out of said street and off of said tracks to avoid an approaching fire truck which was coming westward on said street; that in so attempting to turn his bicycle across the north rail of the track and out of the path of the fire truck, the front wheel of plaintiff's bicycle came in contact with the rail and uneven paving; that he was thereby caused to swerve and turn, and as a result thereof the plaintiff was thrown to the pavement; and that in immediately attempting to regain his feet and move out of the path of the truck, the truck ran into and over the plaintiff, injuring him permanently and seriously. The plaintiff asks damages against the said city of Tulsa by reason of the negligence of the said city as aforesaid, in the sum of $100,000. He alleged that he exercised due care and caution for his safety. The defendant for its answer denies each and every allegation in the plaintiff's petition contained; and the defendant for further answer says that if the plaintiff was injured at the place that he was guilty of contributory negligence, in this, that he neglected to use ordinary reasonable care for himself to protect himself from injury in that he knew of the alleged defect in the paving and neglected and failed to avoid it; second, that he endeavored to ride and drive his bicycle across the depression in said track at an angle and in such manner at which he knew or should have known by the exercise of ordinary and reasonable care that he would likely cause his bicycle to overturn, and that the negligence of the plaintiff was the direct and proximate cause of the injury and directly and proximately contributed thereto."

For further answer to the defendant's petition, the defendant says that on the 2d day of August, 1917, this same plaintiff filed his action against the Tulsa Street Railway Company in the district court of Tulsa county, Okl., the same being No 6543, and that said cause was tried to the court and jury in said court, and resulted in a verdict in favor of the defendant, and that said judgment was in full force and effect and has never been vacated, modified, or reversed,...