Okla. City v. Hayden

• Decision Date: 23 October 1934
• Docket Number: Case Number: 23249
• Citation: 37 P.2d 642,169 Okla. 502,1934 OK 580
• Parties: OKLAHOMA CITY v. HAYDEN.
• Court: Oklahoma Supreme Court

1934 OK 580

37 P.2d 642

169 Okla. 502

OKLAHOMA CITY v. HAYDEN.

Case Number: 23249

Supreme Court of Oklahoma

Decided: October 23, 1934

Syllabus

¶0 1. Municipal Corporations--Action for Per. son, al Injuries From Falling Into Manhole--Petition Held Sufficient to Raise Issue of Initial Defect in Cover of Manhole.

Where plaintiff was injured by falling into a manhole over a sewer catch basin in one of the city's public streets, and brings action for damages, and alleges in her petition, among other things, that the lid used ag a cover for said manhole did not fit the same, but was defective and out of repair, that said cover or lid would turn up edgewise when any weight was put on it, said pleading is sufficient to raise the issue of an initial defect.

2. Same--Evidence Held Sufficient to Show Initial Defect Necessarily Known to City From Time of Placement.

Where plaintiff was injured by failing into a manhole over a sewer catch basin in one of the city's public streets, and brings an action for damages and bases same upon the negligence of the city in using a cover for said manhole which did not fit the same, lint was defective and out of repair, a fair conclusion from the evidence is that the defect is an initial defect, and necessarily known to the city from the time it was placed there. Hehl, no further notice of the defect to the city was necessary.

3. Appeal and Error--Sufficiency of Evidence--Negligence as question of Fact.

The question of negligence is a question of fact, and where there is evidence reasonably tending to support the judgment of the court there on, the same will not be disturbed on appeal.

4. Trial--Sufficiency of Instruction--Refusal of Requests.

Where the court fully and fairly instructs the jury on all material issues arising in the case, it is not error for the court to refuse requested instruction.

5. Negligence--Trial--Refusal to Submit Issue of Contributory Negligence not Error Where There Is no Evidence to Establish Same.

It is not error for the court to refuse to submit the issue of contributory negligence to the jury, where the evidence offered by the plaintiff does not make a prima facie case of such negligence, and where the evidence offered in no manner tends to establish such negligence.

6. Damages--Excessiveness of Verdict.

It is well settled that in determining whether a verdict is excessive each case must be ruled chiefly on its own facts and circumstances.

Appeal from District Court, Oklahoma County; Sam Hooker, Judge.

Action by Josephine Hayden against the City of Oklahoma City, Judgment for plaintiff, and defendant appeals. Affirmed.

W. H. Brown, Municipal Counsellor, and Harlan T. Deupree, Asst. Municipal Counsellor, for plaintiff in error.

John F. Butler and Suits & Disney, for defendant in error.

PER CURIAM.

¶1 This cause was instituted in the district court of Oklahoma county, Okla., on September 19, 1930, by Josephine Hayden, defendant in error herein and plaintiff below, against the city of Oklahoma City, Okla., a municipal corporation, plaintiff in error herein and defendant below, by the filing of a petition, wherein she alleges, among other things, that prior to the 10th day of May, 1930, the defendant constructed a catch basin at the southeast corner of the intersection of South Walker avenue and Noble street, upon the parking in close proximity to the sidewalk, and over said catch basin was built a manhole which was covered by a large piece of cast iron, circular in shape.

¶2 Paragraphs 4 and 6 of said petition are set out in full herein:

"(4) That the said circular lid used as a cover for said manhole did not fit the same, but was defective and out of repair, and had been negligently permitted to remain as a cover to said manhole in said defective condition for a period of approximately three weeks prior to the 10th day of May, 1930, and was in said defective condition and out of repair at the time plaintiff was injured; that said cover or lid would turn up edgewise when any weight was put on it."

"(6) That for a considerable time prior to the 10th day of May, 1930, said manhole covering was dangerous, defective, and unsafe for the use of pedestrians; that the defendant had notice of this condition, but negligently, carelessly, and knowingly permitted said defective covering to remain upon said manhole for a considerable time prior to and up to and including the 10th day of May, 1930, and neglected to maintain any barriers, guards, warning or signal to put pedestrians on their guard as to the defective and dangerous condition of said covering."

¶3 She further alleges that on or about the 10th day of May, 1930, she was injured while walking down the sidewalk by stepping onto the circular lid covering the manhole. That when she stepped upon said lid or cover, the same turned up edgewise, throwing her into the manhole and over against the curb, causing her to sustain serious injuries to her back, hips, left side, chin, and head, and other internal injuries.

¶4 A trial was had on the 8th day of January, 1931, before a jury, and judgment was rendered upon the verdict of the jury in favor of the plaintiff in the sum of $ 3,500. To reverse the judgment the city of Oklahoma City, a municipal corporation, appeals to this court. The defendant sets forth 26-assignments of error, which he argues under six propositions as follows:

"1. The court erred in instructing the jury on an initial defect in the street, being an issue not raised by the pleadings or evidence.

"2. The city is not liable in the absence of actual notice, or proof of defect existing prior to the time of injury as basis for constructive notice.

"3. A municipal corporation is not liable for a defective condition in a street: or parking based on constructive notice of the defect until it has had a reasonable lime to repair or remedy the defect after having such notice thereof, and this isa question for the jury.

"4. The plaintiff cannot recover in the absence of exercise of duo care on her part, and an instruction which allows recovery regardless of due care is erroneous.

"5. The court erred in refusing to charge the jury on plaintiffs contributory negligence.

"6. That the damages awarded were excessive."

¶5 We will first take up the first proposition, which is that the court erred in instructing the jury on an initial defect in the street, being an issue not raised by the pleadings or evidence. We have studied the petition of plaintiff carefully, and especially paragraphs 4 and 6 thereof, and are not unmindful of what plaintiff in error has to say in its brief about the theory of plaintiff. The pleading is broad and the theory of an initial defect is not stressed in the petition. In our opinion, it is sufficient to raise the issue of an initial defect, and evidence submitted on that proposition was rightfully admitted. Had plaintiff in error desired, it could have required plaintiff to make her petition more definite and certain in this respect. Plaintiff in error further contends that there was no evidence of an initial defect, and that defendant in error changed her theory of the case after this appeal was taken. We cannot agree with this contention. The testimony of the witness W. T. Edmiston completely negatives this contention. He testified positively that the cover of said manhole did not fit right; that if crowded to one side, it left a vacancy on the other side, so as to make it...