City of Wagoner v. Black
| Citation | 97 P.2d 21,186 Okla. 207,1939 OK 526 |
| Decision Date | 12 December 1939 |
| Docket Number | 28976. |
| Parties | CITY OF WAGONER v. BLACK. |
| Court | Supreme Court of Oklahoma |
Syllabus by the Court.
1. When a defendant does not stand upon his demurrer to the plaintiff's evidence, but thereafter and before the cause is submitted to the jury, he proceeds to introduce evidence on his own behalf, the court's alleged error in overruling said demurrer will not be considered on an appeal from a judgment entered in conformity with the jury's verdict.
2. In an action to recover damages from a municipality for personal injuries suffered from a dangerous condition arising out of the performance of repairs or improvements on one of its streets, it is unnecessary to introduce specific proof that said defendant had notice of that particular condition where said repairs or improvements were authorized by said defendant.
3. A piece of telephone wiring extending across a city street four inches above its surface at dusk or twilight is an obstruction in said street of such character that careful and prudent men might reasonably differ as to whether it amounts to a danger or menace to the traveling public and it is not error to submit said question to the jury.
4. Where a motion for a continuance is based upon inability to obtain the deposition of a certain allegedly material witness before the trial, the overruling of said motion is no ground for reversing upon appeal, the judgment thereafter entered in said cause, when it appears that the facts that said deposition was sought to prove, were established by other evidence subsequently introduced.
5. Evidence examined and held: Verdict for $5,000 in said cause is not excessive.
Appeal from District Court, Wagoner County; O. H. P. Brewer, Judge.
Action by Harry S. Black against the City of Wagoner, Oklahoma, to recover damages for personal injuries sustained in a fall on one of defendant's streets. From a judgment in favor of the plaintiff, the defendant appeals.
Judgment affirmed
W. O Rittenhouse and Fred W. Martin, both of Wagoner, for plaintiff in error.
Bailey E. Bell, of Tulsa, and Watts & Watts, of Wagoner, for defendant in error.
The defendant in error, as plaintiff, commenced this action to recover $10,000 in damages from the plaintiff in error, as defendant, for personal injuries from a fall he received upon one of the defendant's streets. The fall occurred when the plaintiff stumbled over a wire extending across Ninth Street immediately after walking into said street from Smith Avenue at approximately 7:30 P. M. on April 19, 1937. Both streets are unpaved.
The plaintiff's fall was caused by a piece of telephone wiring, one end of which was fastened to a stake on one side of Ninth Street while the other end lay in some weeds on the other side of said street. It was placed there early in the afternoon of April 19, by John Smith and Floyd Riddle after being used that day in their work. Said work consisted in digging a ditch along Smith Avenue to its intersection with Ninth Street and was part of a street improvement project being performed with unskilled laborers furnished by the Works Progress Administration of the federal government and certain skilled laborers and equipment contributed by the defendant city. Smith and Riddle were among the group of laborers furnished by the Works Progress Administration.
When the cause came on for trial the defendant moved that it be continued, but the court overruled said motion and proceeded with the trial. At the close of the plaintiff's evidence the court overruled the defendant's demurrer to same. Thereafter the defendant introduced its evidence and when both parties had rested, requested that certain instructions be given the jury. The court did not give all of the instructions requested, but in lieu of some of them, he gave three instructions which the defendant had not requested.
The jury returned a verdict for the plaintiff in the sum of $5,000, and judgment was entered in conformity therewith.
Having perfected this appeal, the defendant first urges that the trial court erred in overruling its demurrer to the plaintiff's evidence. Since the defendant did not stand on said demurrer but proceeded to introduce its evidence, we will not consider the sufficiency of the plaintiff's evidence alone. See Stagner v. Files, 182 Okl. 475, 78 P.2d 418.
The defendant further contends that the trial court erred in giving instructions numbered 4, 15 and 16, and refusing to give its requested instructions numbered 1 and 4. Under the instructions complained of, the jury was told that they might return a verdict for the plaintiff even though they found that the wire which caused plaintiff's fall was placed in position and left there by W. P. A. workers, if they also found that by reason thereof, the street upon which the plaintiff fell was not in a reasonably safe condition for travel.
The defendant contends that it is not liable upon this theory, unless it had notice of said condition and that therefore the court committed error in refusing to give its requested instruction No. 4, which presented to the jury the question of notice. The defendant further maintains that the court committed error in refusing to direct a verdict for the defendant as requested in its requested instruction No. 1, for any one or all of the following asserted reasons: (1) The record reveals that the defendant had no notice that the wire was left across the street; (2) the position of the wire did not create such a dangerous condition in the street as could reasonably be anticipated to cause damage; and (3) it was placed and left there, not by its servants, agents or employees, but by employees of the W. P. A. or Works Progress Administration.
Counsel for the defense cite language used in the decisions of cases in other jurisdictions to the effect that laborers furnished by federal relief agencies like the W. P. A. for a project similar to the one here involved are not employees of the city or local political entity for whose benefit the project is being performed. Under one of the theories adopted by the plaintiff, however, and submitted to the jury by the court's instructions numbered 15 and 16, it is immaterial whether the W. P. A. workers who created the condition from which the plaintiff's injuries resulted, were employees of the defendant city or not. According to this theory, a city is bound to keep its streets reasonably safe for travel and it is liable for its failure to do so, even though the unsafe condition was created or caused by persons other than servants and employees of the municipality. This doctrine seems to be the generally accepted view. See 43 C.J. 901, par. 1775; Dillon, Municipal Corporations, 5th Ed., vol. 14, p. 2991, par. 1708; McQuillin, Municipal Corporations, 2d Ed., p. 207, sec. 2985. The following decisions of this court in effect conform to that view: City of Purcell v. Stubblefield, 41 Okl. 562, 139 P. 290, 51 L.R.A.,N.S, 1077; City of Tulsa v. Wells, 79 Okl. 39, 191 P. 186; City of Chickasha v. Daniels, 123 Okl. 73, 251 P. 978, 51 A.L.R. 568; City of Shawnee v. Sears, 39 Okl. 789, 137 P. 107, 50 L.R.A.,N.S., 885. However, the city's liability does not extend to defects or obstructions rendering its streets unsafe unless it can be said to have had notice of same or as stated in Armstrong v. City of Tulsa et al., 102 Okl. 49, 226 P. 560, 563, "unless the facts and circumstances are such as to warrant an inference of notice or knowledge * * *". Counsel for the defendant contend that this condition to the operation of the rule exists to defeat liability in the present case because it was not shown that the defendant had notice that the W. P. A. workers had left the wire in question extending across the street. In support of this contention they call our particular attention to the testimony of the witness Henry Bayes, who was the Street Commissioner, of the defendant city during the performance of the W. P. A. project in question. Bayes admitted that he was at the scene of the accident frequently during the performance of the project, that he was there to see that the workers "got the road up to grade, according to Hoyle" or "according to specification," but according to his testimony the wire either was not across the street when he left there about the time the work ceased on the day of the accident or if it was, he did not see it. Counsel for the plaintiff contend that Bayes' testimony to the effect that he did not know the wire was left as it was by the W. P. A. workers is ineffective to warrant disturbing the jury's verdict, for under the correct principles of law applicable, it is immaterial whether Bayes was actually aware of that fact or not. In support of this view counsel cite the rule enunciated in City of Hugo v. Nance, 39 Okl. 640, 135 P. 346, as follows: "If a municipal corporation rightfully causes an improvement to be constructed or other work to be done, whether by an independent contractor or otherwise, it is bound to take notice of the character of the work, and its condition, whether safe or dangerous, and is bound to take notice of the condition, whether safe or dangerous, of its streets and grounds as affected by the prosecution or performance of such improvement."
In the body of the opinion in the above case, it is demonstrated that the responsibility of a municipality for construction or repair work which it has authorized another to do upon its streets and sidewalks comes within the exception which exists to the general rule of a party's non-liability for the negligence of his contractor in a case where said party is under a primary obligation to keep the subject-matter of the work in a safe condition. The conclusion announced in...
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