Town of Quapaw v. Holden
| Decision Date | 15 January 1924 |
| Docket Number | 13022. |
| Citation | 222 P. 680,96 Okla. 281,1924 OK 52 |
| Parties | TOWN OF QUAPAW v. HOLDEN. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In order to entitle a party to insist that a requested instruction be given to the jury, such instruction must be correct both in form and substance, and such that the court might give to the jury without modification or omission, and if the instruction is erroneous in any respect, its refusal is not error.
Though an alley on certain premises may have been dedicated, and the alley appears on the map of the city, the city is not subjected to the duty of keeping the same in a safe condition, as an alley, where the same has never been used by the public as an alley or highway.
While it is well established by the decisions of this court that the trial court should not instruct the jury that if a certain state of facts is found to exist such facts constitute contributory negligence, and the plaintiff cannot recover, it is nevertheless the duty of the trial court to instruct the jury, upon a request being made, what duty the law imposes upon the plaintiff as well as the defendant, and that a breach of that duty is negligent.
A municipal corporation is bound by law to use ordinary care and diligence to keep its streets and sidewalks in a reasonably safe condition for public use in the ordinary mode of traveling, and, if it fails to do so, it is liable for injuries sustained by reason of such negligence, provided however, that such party injured exercised ordinary care to avoid the injury.
An instruction reading: "The court instructs the jury that it is as much the duty of the city to keep the streets and alleys in the suburbs of the city in as safe condition for the use of travelers as those in the heart of the city, that while the authorities may have a discretion in the matter of elegance of pavements, or in the matter of pavements or no pavements, yet they have no discretion in the matter of safety; and it is an absolute duty to keep all the streets and alleys in the city in a reasonably safe condition for the use of travelers, whether in the body of the city or near its limits," is erroneous, as it imposes upon the municipality a greater duty than that required by the rule announced above.
Appeal from County Court, Ottawa County; Q. P. McGhee, Judge.
Suit by Mrs. Mary Holden against Town of Quapaw. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.
Wm. M Thomas, of Miami, for plaintiff in error.
Chas. R. Nesbitt, of Tulsa, for defendant in error.
Defendant in error brought this suit to recover damages against the town of Quapaw. Judgment was rendered for the defendant in error, from which the town of Quapaw has appealed.
The testimony of the plaintiff tended to show that she was going from her work to her home, and, in doing so, turned out of the main street and traveled diagonally across block 11, traveling along a path which was used across some vacant lots. The municipality had caused an excavation to be made in the alley which runs through block 11, for the purpose of making some repairs to the sewer system, and had left an open trench about 3 feet wide, 9 feet long, and 6 feet deep, which was unguarded, and the existence of which was not indicated by any character of sign or light. As the plaintiff came along the path to the point where the excavation had been made, she was unable to see the excavation on account of darkness, and stepped into the same.
It is the contention of the defendant that although the alley in which the excavation was made had been dedicated to the city, and was duly shown on the plat of the addition which had been recorded, the alley had never been opened by the city, and was not used or maintained by the municipality as a highway, and the injury to the plaintiff was occasioned by the plaintiffs gaining access to the alley across private property, over which she was at the time trespassing. The defendant complains of the refusal of the trial court to give requested instruction No. 4, which was as follows:
"You are instructed that if you find from the evidence that the town of Quapaw had not opened the alley through block 11, where the excavation was located, to public travel by putting it in repair, or by inviting the public to travel it, then there can be no liability of defendant for injuries received by falling into said excavation."
The defendant contends that this instruction should have been given, because there was evidence tending to show that the alley through block 11 had never been used by the public as an alley or highway. We are of the opinion that the requested instruction was properly refused, because it does not contain a correct statement of the law; however, the defendant was entitled, upon proper request, to have an instruction given to the jury covering this defense. The mere fact that an alley through block 11 may have been dedicated by the recording of the plat for the addition did not impose upon the town of Quapaw the duty to maintain the same as a highway of the municipality, unless the alley was used as a public highway. In Lipscomb v. City of Bessemer, 161 Ala. 173, 49 So. 872, the following statement is contained in the syllabus:
"Though an alley on certain premises may have been dedicated, and the alley appears on the map of the city, the city is not liable for injuries alleged to have resulted from the defective condition of the premises, where the same had never been used by the public as an alley or highway."
Since the requested instruction did not contain a correct statement of the law, it was not error for the trial court to refuse to give the same.
It is insisted by the defendant that the plaintiff was not entitled to recover in this case, because the testimony shows that the plaintiff entered the alley by trespassing across private property, and the case of Mulvane v. City of South Topeka, 45 Kan. 45, 25 P. 217, 23 Am. St. Rep. 706, is cited, in which the...
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Byford v. Town of Asher, 75849
...to show primary negligence by the Town. 1 Although called an "exception" to the constitutional The Town relies on Town of Quapaw v. Holden, 96 Okla. 281, 222 P. 680 (1924) as authority for the proposition that maintenance is not required if the alley is not used by the public. In Quapaw, an......