Walker v. Reeves, 33926

• Decision Date: 05 June 1951
• Docket Number: No. 33926,33926
• Citation: 233 P.2d 307,204 Okla. 669
• Parties: WALKER v. REEVES et al.
• Court: Oklahoma Supreme Court

Page 307

233 P.2d 307

204 Okla. 669

WALKER v. REEVES et al.

No. 33926.

Supreme Court of Oklahoma.

June 5, 1951.

Rehearing Denied July 3, 1951.

Syllabus by the Court.

1. The fact that a city ordinance imposes upon the abutting property owners the obligation of performance of a dity which belongs to the municipality, and provides a penalty for failure to comply with such ordinance, does not establish negligence upon failure of the property owner to comply with the ordinance, nor does it give a right of action to individuals injured as a result of such failure.

2. The liability of a municipal corporation for injuries from defects or obstructions in its streets is for negligence only; it is not an insurer of the safety of travelers, but is required to exercise ordinary care to maintain its streets and sidewalks in a reasonably safe condition for travel by those using them in a proper manner.

3. A municipality will not be liable for every defect or obstruction, however slight or trivial, or little likely to cause injury, or for every mere inequality or irregularity in the surface of the way; it is only against danger which can or ought to be anticipated, in the exercise of reasonable care and prudence, that the municipality is bound to guard.

4. A municipality is not required so to construct all its sidewalks that they shall meet upon exactly the same level, and the mere existence of a descent, slope, or step in the sidewalk does not render it liable for the accidents to persons in stepping from one elevation to another, where the inequality or inclination is so slight that injury therefrom could not reasonably be anticipated.

Harold Dodson, Bliss Kelly, Oklahoma City, for plaintiff in error.

Cheek, Cheek & Cheek, Oklahoma City, George Miller, Jr., Oklahoma City, of counsel, for defendants in error.

A. L. Jeffrey, Municipal Counselor, P. J. Demopolos and Raymond Gramlich, Asst. Municipal Counselors, all of Oklahoma City, for defendant in error, City of Oklahoma City.

CORN, Justice.

Plaintiff sued defendants Reeves, and defendant city, to recover damages for personal injuries sustained by reason of a fall upon an alleged defective, icy sidewalk in front of Hadden Hall, an apartment hotel owned and operated by the Reeves.

The case was tried upon the amended petition, wherein plaintiff alleged he was a tenant of the hotel, and was injured by the fall when leaving the building about 6:30 PM of the evening of January 2, 1947.

The essential allegations of negligence were that the sidewalk in front of the hotel was at a higher level than the established grade; that the hotel steps project onto the walk and the walk had been constructed and was maintained in this condition for the benefit of the owners of the abutting property as an entrance platform into the hotel, necessitating maintenance of such defective and dangerous incline; that the platform was built and maintained without permit and authority from the defendant city for such construction and maintenance as required by applicable city ordinances; was not constructed upon proper grade level fixed by the city; that such condition had existed for a long period and the city had actual or constructive notice thereof; although such condition was known to all defendants, no action had been taken to correct same and such dangerous condition had been negligently permitted to remain.

Further, that defendants knew such defective condition would be extremely dangerous when the incline became covered with snow and ice, but they negligently permitted snow and ice to accumulate thereon, in violation of Section 19-11, Revised Ordinances of Oklahoma City (1936) which provides: 'It shall hereafter be unlawful for any property owner, occupant or agent of any property owner that abuts or adjoins any street or avenue of the City of Oklahoma City to allow or permit any animal or vegetable substance, or any tin, glass or pieces of iron, or any trash, mud, snow, dirt, slop, refuse matter or filth of any kind or description whatever to accumulate or remain on any part of the sidewalk abutting or adjacent to the premises owned or occupied by such person.'

Defendants Reeves answered by general denial and plea of unavoidable accident. They admitted existence of the incline, but denied construction of same, and alleged the walk to be city property and that construction of same had been approved by the city; no complaint had been made as to construction thereof, and as so constructed the walk was of no special benefit to them, although it had existed in such condition for many years prior to their purchase of the property. Defendants further alleged the accumulated ice and snow to be the result of an act of God, and that plaintiff had been guilty of contributory negligence.

The defendant city answered by general denial, and further denied maintenance of the sidewalk in a dangerous condition; that it had any notice of such condition; plead contributory negligence and an act of God. The city further alleged defendants Reeves maintained the walk above normal grade in front of the building entrance, which necessitated the incline; that the walk was so constructed and maintained in order that steps leading into the hotel could be constructed upon public property, this conserving space in defendants' building; that such construction and maintenance was of special and peculiar benefit to the Reeves, for which the city could not be held liable.

At the trial defendants' objections to the introduction of evidence were overruled, and plaintiff introduced substantially the following testimony. In his own behalf plaintiff testified he was a tenant at Hadden Hall on January 2, 1947, and had returned to his residence about 5 PM that day from a trip out of the city. Snow had fallen two or three days before, although it had not snowed that day, and the weather was cold. He left his room after dark intending to go to a restaurant for his evening meal. Leaving the hotel he stepped out onto the front sidewalk and started down the incline at the west edge of defendants' property. Plaintiff did not know the incline was covered with ice, but did attempt to steady himself by placing his hand on an abutment contiguous to the incline. In attempting to descend this incline he slipped and fell, sustaining injuries which required his hospitalization.

A civil engineer (Hughes), who had wide experience as an engineer for several large cities, and who had served as assistant engineer in Oklahoma City, testified for plaintiff. This witness had been familiar with the sidewalk and street in front of Hadden Hall since 1928. Tenth street sloped west toward Harvey street, and buildings along the block were built on the ground level, which was approximately two feet higher than the paved street. Excavations on property to the east and west of Hadden Hall were made after the hotel was erected (as well as another hotel to the west) necessitating that the buildings meet the lowered sidewalk grade. Originally there had been three steps at the west edge of defendants' property, although the did not know exactly when they were replaced by the incline. The two entrance steps into the hotel encroach upon the public sidewalk. The grade of the incline amounted to a twenty percent grade, and such a grade is considered excessive, unsafe and dangerous for pedestrians.

At the trial the parties entered into the following stipulation: 'It is stipulated and agreed in this case if the employee with the official records in the office of the City Engineer was present he would testify under oath he has made a search of those records and can find no record of any permit having to do with the erection or repair or maintenance of this particular sidewalk involved in this action of any kind from 1913 to date.'

Upon conclusion of plaintiff's evidence the defendants, and the defendant city, interposed separate demurrers to the evidence upon the grounds the evidence was insufficient to establish facts constituting a cause of action, to raise any issue for the jury's consideration, or to sustain any verdict in plaintiff's favor. After presentation of argument the trial court sustained the demurrers and...