Kirk v. City of Muskogee

• Decision Date: 18 October 1938
• Docket Number: Case Number: 28351
• Citation: 183 Okla. 536,83 P.2d 594,1938 OK 526
• Parties: KIRK v. CITY OF MUSKOGEE
• Court: Oklahoma Supreme Court

1938 OK 526

83 P.2d 594

183 Okla. 536

KIRK v. CITY OF MUSKOGEE

Case Number: 28351

Supreme Court of Oklahoma

Decided: October 18, 1938

Syllabus

¶0 1. MUNICIPAL CORPORATIONS - Municipality not Liable for Negligence or Failure in Exercise of Governmental Function of Regulating Traffic.

The regulation of traffic is a governmental function and a municipality is not liable for negligence or failure in the exercise of said function.

2. SAME - City's Failure to Maintain Traffic Sign at Street Intersection Will not Support Action for Death Caused by Automobile Collision.

The alleged failure of a city to maintain a traffic sign in such a manner that it will apprise the drivers of vehicles of their duty to stop at a street intersection will not support an action for death resulting from a collision between two automobiles at said intersection.

3. SAME - Traffic Sign not Nuisance Merely Because Defective.

A traffic sign is not a nuisance merely because it does not accomplish its purpose.

Appeal from District Court, Muskogee County; O.H.P. Brewer, Judge.

Action by Mrs. Ocia Kirk, as widow of C.R. Kirk, deceased, and another against the City of Muskogee for damages for the death of their husband and father as a result of an automobile collision allegedly caused by the failure of the defendant to repair a traffic sign. From an order sustaining a demurrer to plaintiffs' amended petition, the plaintiffs appeal. Affirmed.

A.L. Brook and Chas. A. Moon, for plaintiffs in error.

W.F. Rampendahl, for defendant in error.

DAVISON, J.

¶1 The present appeal involves the alleged error of the trial court in sustaining the demurrer interposed on behalf of the defendant to the petition of the plaintiffs.

¶2 The plaintiffs, who are the minor child and widow of one C.R. Kirk, deceased, filed this action to recover damages for his death, which occurred as a result of the collision of the automobile, in which he was riding, with another automobile at the intersection of K and Houston streets in the defendant city. The substance of the material allegations of the petition is as follows: That K street extends in a northerly and southerly direction and Houston street extends in an easterly and westerly direction; that approximately five years before the accident a hard rubber stop sign, about two feet long, one-half inch thick, and eight inches in height, had been erected by the defendant city in the center of K street where said street intersects with Houston street, to notify all motorists who approached Houston street from the south on K street that Houston street was a "through" street; that according to a city ordinance of said defendant city, a motorist approaching the intersection from the south on K street would have the right of way over a motorist approaching said intersection from the west on Houston street, except that the stop sign on K street indicated that he was to stop before entering said intersection; that about two months before the collision, the stop sign in question had been allowed to become obscure and invisible by reason of having been worn even with the surface of the street, and it remained in that condition on the date of said collision; that on said day Kirk was riding as a guest in an automobile driven by one Silas Martin, and as said auto traveled north on K street approaching the intersection of said street with Houston street, both of its occupants observed another auto approaching said intersection from the west on Houston street; that notwithstanding this observation, they proceeded ahead into said intersection, because being nonresidents of the defendant city, they were unfamiliar with the fact that Houston street had been designated a "through" street, and were unmindful of the fact that the driver of the other car was relying upon Martin to stop the car in which they were riding before driving it into said intersection; that, as a consequence, both cars proceeded ahead until they collided in the center of said intersection with such force that Kirk was killed instantly.

¶3 The liability of the defendant city for Kirk's death is alleged to be due to its negligence in failing to maintain the stop sign on K street so that it would apprise motorists approaching said intersection upon K street that they should stop before entering said intersect, and it is argued that the city's neglect to maintain some such warning constituted a nuisance and amounted to a failure to keep its streets in a reasonably safe condition for travel.

¶4 The defendant denies liability on the ground that its negligence, if any, arose out of the performance of a governmental function, and that consequently it is exempt from liability therefor, and further contends that no nuisance was created thereby.

¶5 The plaintiffs attempt to bring the present case within the rule of municipal responsibility for the condition of its streets, but it can readily be seen that neglect in the regulation of traffic does not necessarily have anything to do with the physical condition of streets. There is no doubt that the regulation of traffic is a governmental function, and that no liability accrues on the part of a municipality for negligence in the performance of said function. See Dorminey v. City of Montgomery, 232 Ala. 47, 166 So. 689; Cleveland v. Town of Lancaster, 267 N.Y. S. 673, 239 App. Div. 263; Martin v. City of Canton, 41. Ohio App. 420, 180 N.E. 78; Auslander v. City of St. Louis, 332 Mo. 145, 56 S.W.2d 778; Murphy v. Incorporated Village of Farmingdale, 252 App. Div. 327, 299 N. Y. S. 586; Carruthers v. City of St. Louis (Mo.) 111 S.W.2d 32; Shaw v. City of New York, 1 N.Y.S.2d 311; City of Rome v. Potts, 45 Ga. App. 406, 165 S.E. 131; W.H. Powell, Adm'r, v. City of Nashville, 167 Tenn. 334, 69 S.W.2d 894, 92 A.L.R. 1493, and annotation at page 1495; Berry (7th Ed.) Automobiles, sec. 4289. Compare Mengel v. City of St. Louis (Mo.) 111 S.W.2d 5; Mayor and Aldermen of City of Vicksburg v. Dr. H.H. Harralson, 136 Miss. 872, 101 So. 713.

¶6 This court is committed to the rule that a municipality is liable for damages sustained from defects in its streets, but there is a clear distinction between the failure of a city to keep its streets in a safe condition as regards physical defects therein and failure or neglect in regulating traffic thereon. This is aptly demonstrated by the Supreme Court of Missouri in the opinion rendered in Auslander v. City of St. Louis, supra, followed in Dorminey v. City of Montgomery, supra. After considering many cases from various jurisdictions in which municipalities were held liable for negligence in maintaining traffic markers, signs, and signals which constituted obstructions or defects in streets, the court said (56 S.W.2d 782):

"These cases, however, are to be distinguished from the present case, in that in each of them the plaintiff's injury resulted from a collision with the signal itself, which the court held to constitute an obstruction to the street, rendering it unsafe for travel thereon. The defendant's liability in such cases, therefore, was based on a failure of the city to keep its streets in a reasonably safe condition for travel thereon by reason of defects in the physical condition of the same. In the present case, plaintiff's injury was in no way caused by a collision with the traffic signal, and it is not claimed that such signal itself constituted an obstruction to travel on such street or rendered the same unsafe. The injury here resulted from plaintiff's collision with the automobile of another traveler using this same street intersection, and plaintiff's

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