Oklahoma City v. Prieto
Decision Date | 02 February 1971 |
Docket Number | No. 42748,42748 |
Citation | 1971 OK 10,482 P.2d 919 |
Parties | OKLAHOMA CITY, a municipal corporation, Plaintiff in Error, v. Josie PRIETO, Defendant in Error. |
Court | Oklahoma Supreme Court |
Syllabus by the Court
1. The question of whether evidence is entirely lacking in probative force because of its remoteness in terms of time or place must be controlled by the usual nature and state of things sought to be proved thereby or inferred therefrom and by the particular circumstances of the case, and the trial judge is clothed with wide discretion in determining such question.
2. One reasonable inference resulting from a proven fact or facts may be treated as evidence in itself.
3. The title to an act of the Legislature must be construed with reference to the language used in it alone and not in the light of what the body of the act contains.
4. The subject expressed in the title to an act fixes a limit upon the scope of the act, and all parts of an act which are not within its title are unconstitutional and void, even though such provisions might properly have been included in the act under a broader title.
Appeal from the District Court of Oklahoma County; Jack R. Parr, Judge.
Action by Josie Prieto against City of Oklahoma City for personal injuries suffered from falling into an open manhole in a city alley. Jury Returned verdict for plaintiff and City appeals urging insufficiency of evidence and failure of plaintiff to give notice specified in Governmental Tort Liability Act, 11 O.S.Supp.1965, § 1751 et seq. Affirmed.
Roy H. Semtner, Municipal Counselor, Tom B. McGee, Asst. Municipal Counselor, Oklahoma City, for plaintiff in error.
Carl W. Davis, Oklahoma City, for defendant in error.
The City of Oklahoma City (defendant below) appeals from a judgment rendered on a jury verdict in favor of Josie Prieto (plaintiff below) for injuries suffered by her when she fell into an open sewer manhole located in a city alley. We will refer to the parties by their trial court designation.
Defendant City complains that the trial court erred in overruling its demurrer to plaintiff's evidence, and in denying defendant's request for a directed verdict in its favor. This proposition is based on defendant's claim, (1) that plaintiff's evidence did not show defendant was negligent, and (2) that plaintiff could not maintain the suit because she failed to give defendant the notice specified in 11 O.S.Supp.1965, § 1756, of the Governmental Tort Liability Act.
The evidence reflects that plaintiff and her 7 year old son occupied a small house on the rear of a lot located adjacent, or in close proximity, to the alley. On the morning of November 30, 1965, at about 5:30 A.M., while it was still dark, plaintiff and her son, as was their usual custom, started walking south down the alley for the purpose of leaving the boy with a baby-sitter. While walking down the alley plaintiff fell into an open manhole, which was full of blackish liquid. A short time later, when it was daylight, she returned to the area and saw the manhole lid lying about two or three feet from the manhole.
Plaintiff's landlady testified that she learned of plaintiff's accident when plaintiff returned to her home to clean up, that she (landlady) informed the City by telephone of the open manhole, and then walked down the alley and saw the open manhole, filled with liquid and the cover lying two or three feet to the west. The defendant City cleared the sewer and replaced the cover on the manhole that morning. The landlady also testified that the morning of the previous day (November 29, 1965) at about 8:35 A.M. she saw a blue City truck with a City sign on its side at the manhole, that the cover was off and a crew of men with a cable 'down in the manhole working on it because they had a lot of trouble with the sewer running over.'
The defendant introduced testimony to show that its records did not reflect that a City sewer maintenance truck was dispatched to the location of the manhole on the date prior to the day of plaintiff's injuries. This witness did admit that it was possible that some mistakes had been made in the keeping of these records. Defendant also introduced the testimony of persons who frequented the area that they did not see the cover off of the manhole during the day prior to the date of plaintiff's injuries. Defendant's Superintendent of Sewer Division testified that the lid involved in the case was an old style cover and weighed between 100 and 115 pounds; that it was hard to take off; and that a special pick with a curved tip was inserted in a hole in the cover to lift off the cover.
Defendant contends that plaintiff's claim that defendant's employees left the cover off of the manhole is supported by evidence that amounts only to a conjecture, or an inference based upon an inference.
It is well established that a municipal corporation has a primary duty of keeping and maintaining its streets, sidewalks, and public ways, in a reasonably safe condition for the traveling public, and that its liability for personal injuries by reason of defects and obstructions therein is founded solely on negligence. Lane v. City of Tulsa, Okl., 402 P.2d 908.
It is also well established that the question of whether a municipality exercised ordinary care and diligence in keeping its streets, sidewalks, and public ways in a reasonably safe condition is a question of fact to be determined by a jury. Lane v. City of Tulsa, supra.
Defendant argues in effect that plaintiff's evidence, that the manhole cover was off the morning of the day before plaintiff was injured, while defendant's employees were working at the location, was too remote from the time of injury to constitute proof that the manhole was left uncovered.
It appears to be the general rule that for the purpose of proving or disproving a defect or obstruction at the time of the accident, evidence is admissible which tends to show its existence or nonexistence within a reasonable time prior thereto, where the evidence is such, in character and time, as to justify the inference that the conditions were the same at the time of the accident. 63 C.J.S. Municipal Corporations § 939c(2), p. 431. City of Phoenix v. Boggs, 1 Ariz.App. 370, 403 P.2d 305.
We have held that the question of whether evidence is so remote in terms of time or place as to be entirely lacking in probative force must be controlled by the usual state or nature of things sought to be proved thereby or deduced therefrom and by the particular circumstances of the case. The trial judge is clothed with wide discretion in determining such question. Ordinarily remoteness affects only the weight of the evidence rather than its admissibility or sufficiency to support a verdict. Smittle v. Illingsworth, Okl., 373 P.2d 78.
In the present case the evidence supporting plaintiff's action was that the defendant's employees had removed the manhole lid; that the lid was heavy and hard to remove; and that a special pick was used to remove the lid from its recessed position over the manhole. In such a situation and in view of the above authorities we fail to see how the evidence lacks any probative force to support the inference that the manhole remained open.
In Highway Construction Co. v. Shue, 173 Okl. 456, 49 P.2d 203, we said that one reasonable inference resulting from a proven fact or facts may be treated as evidence in itself. And in Rogers v. Cato Oil & Grease Co., Okl., 396 P.2d 1000, we defined 'inference' as a deduction which is permissible under the evidence. We believe it was a reasonable inference from all of the evidence favorable to plaintiff, if the jury chose to believe it, that the manhole remained open from the time defendant's employees removed the cover until plaintiff's fall the next morning.
In passing upon an alleged error in overruling defendant's demurrer to plaintiff's evidence and request for directed verdict, the evidence will be construed in the light most favorable to plaintiff, and where there is any evidence or reasonable inference from the circumstances reasonably tending to establish a cause of action or to sustain a jury's verdict and a judgment based thereon, such judgment will be sustained on appeal unless shown to be contrary to law. Safeway Stores, Incorporated, v. Keef, Okl., 416 P.2d 892.
Defendant cites and relies on the case of Morrow v. City of Harlan, Ky., 344 S.W.2d 401, where plaintiff was injured when he stepped on a sewer manhole cover in the sidewalk at a street corner curb and it 'rolled or tilted' causing him to drop into the hole. Some city workmen had been cleaning out the manhole about thirty...
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