Cleveland Trinidad Paving Co. v. Mitchell
| Decision Date | 17 April 1914 |
| Docket Number | 3638. |
| Citation | 140 P. 416,42 Okla. 49 |
| Parties | CLEVELAND TRINIDAD PAVING CO. v. MITCHELL ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
It is the duty of a municipal corporation to use ordinary care and diligence to keep its streets and sidewalks in a reasonably safe condition for public use in the ordinary modes of travel, and a failure to do so renders the municipality liable to one injured by reason of such negligence, providing the party injured exercised ordinary care to avoid the injury.
"Ordinary care," as applied to personal injury cases, means that degree of care and caution which might reasonably be expected from an ordinarily prudent person under the circumstances and is a question of fact for the jury to determine.
The notice of a defective street or sidewalk to a city may be actual or constructive. The question of notice is one of fact for the jury to determine.
It is the duty of a construction company making street improvements under contract, when in the course of such improvement it creates a defect in the sidewalk so as to render the same unsafe for ordinary travel and use, to immediately repair such defect and to place such sidewalk in a reasonably safe condition for ordinary use and travel, and a failure to discharge this duty constitutes actionable negligence, on account of which any one injured thereby may maintain an action against it for damages.
Commissioners' Opinion, Division No. 2. Error from District Court, Canadian County; J. G. Carney, Judge.
Action by Celeste Mitchell against the Cleveland Trinidad Paving Company and the city of El Reno. Judgment for plaintiff and the Cleveland Trinidad Paving Company brings error, and the city files cross-errors. Affirmed.
M. D Libby, of El Reno, for plaintiff in error.
John W Clark, of El Reno, and C. E. King, of Tulsa, for defendant in error.
Lucius Babcock, of El Reno, for city of El Reno.
Celeste Mitchell commenced this action against the city of El Reno and the Cleveland Trinidad Paving Company to recover damages for personal injuries which she claimed to have sustained on account of the negligence of the defendants. It is alleged that the Cleveland Trinidad Paving Company, under a contract with the city of El Reno, was making certain street improvements where Russell street intersects and crosses Macomb avenue in said city; that the street had been excavated, leaving a step-off in the sidewalk at a point almost perpendicular with the level of the ground to a depth of about four feet, and that in an attempt to make the street passable for persons using the same, the paving company had thrown in loose earth against the step-off, in an attempt to place the street in a reasonably safe condition; that on the 26th day of July, 1910, in the early evening on that day, the plaintiff, passing along said street and attempting to pass over the step-off, stepped upon this loose earth, which crumbled away and caused her to fall, from which she received injuries resulting in her being confined to her room for two or three weeks, cutting her head and injuring her arm and body, and causing her great mental worry and suffering, and causing her to expend a large sum for medical expenses, etc. Negligence is charged against the city in permitting this temporary and unsafe approach to remain in the walk, and the paving company is alleged to have been negligent in putting this unsafe crossing at that place, and damages alleged in the sum of $2,500. Each of the defendants pleaded a general denial and contributory negligence on the part of the plaintiff. The cause was tried to the court and a jury, and a verdict returned for the plaintiff against both of the defendants in the sum of $600. To review that judgment appeals have been perfected to this court.
It is insisted that the petition did not state facts sufficient to constitute a cause of action; that the court erred in overruling a demurrer thereto, and further erred in denying the motion for an instructed verdict. and in overruling a demurrer to the evidence at the close of the plaintiff's case, and in giving certain instructions as to the law.
We quote from the very exhaustive brief of the plaintiff in error as to the duty which the city of El Reno and the paving company owed to the plaintiff in this case, as follows ...
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