Williams v. City of Bristow

• Decision Date: 08 March 1960
• Docket Number: No. 38435,38435
• Parties: , 1960 OK 61 John W. WILLIAMS, Plaintiff in Error, v. CITY OF BRISTOW, a municipal corporation, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 484

350 P.2d 484

84 A.L.R.2d 501, 1960 OK 61

John W. WILLIAMS, Plaintiff in Error, v. CITY OF BRISTOW, a municipal corporation, Defendant in Error.

No. 38435.

Supreme Court of Oklahoma.

March 8, 1960.

Syllabus by the Court

1. For the purpose of testing sufficiency of a petition, a demurrer thereto admits the truth of all facts well pleaded together with all inferences which may be legally drawn therefrom, and petition is to be liberally construed in favor of plaintiff, but if plaintiff is not entitled to recover under the facts alleged in petition, demurrer thereto should be sustained.

2. Record examined and Held: Under the facts pleaded the defendant city when erecting and maintaining a Christmas tree at an intersection acted in a governmental capacity and was not liable for damages to plaintiff whose view was allegedly obstructed by the tree so as to prevent him from seeing an approaching motorist in time to reach safety and avoid being struck.

Appeal from District Court of Creek County; Jess I. Miracle, Judge.

Action to recover for injury to the person. Demurrer sustained to plaintiff's second amended petition and judgment rendered for defendant. Plaintiff appeals. Affirmed.

Young, Young & Young, Sapulpa, for plaintiff in error.

Wm. L. Cheatham, Bristow, for defendant in error.

BERRY, Justice.

John W. Williams suffered injuries to his person when struck by an automobile. The occurrence took place in Bristow, Oklahoma, early in the evening of December 28, 1956. To recover damages arising from the mishap he commenced this action against the offending motorist, the Bristow Chamber of Commerce and the City of Bristow. The first two defendants mentioned are not before us in the present proceeding on review.

Appellant, plaintiff below, seeks corrective process from this Court to reverse the decision of the trial judge sustaining the demurrer interposed by the City of Bristow to the second amended petition and entering judgment (on plaintiff's refusal to plead further) in favor of the municipality. The parties will be hereinafter referred to by their designations in the lower court.

Plaintiff's petition alleges the City of Bristow, acting in conjunction with the local Chamber of Commerce, adorned its streets with Yuletide decorations. As a part of this joint project a large Christmas tree was erected in the center of the intersection between 6th and Main Streets. The latter is a designated Federal and State Highway (U. S. 66 and State No. 27). Plaintiff, at the time of the occurrence, was proceeding westward within the pedestrian walk marked across the north side of Main at its intersection with 6th Street. The operator of the automobile involved in the mishap was driving east along 6th Street. On reaching the intersection the motorist passed the Christmas tree to the south thereof and, after negotiating around it a left turn to the north and into Main Street, struck plaintiff then afoot in the crosswalk.

Plaintiff charges the city with negligence in erecting, maintaining and failing to remove the Christmas tree. It was 12 feet high and 6 feet wide. Because of its size, ramification and dense foliage, the lights and ornaments thereon, the tree constituted an 'obstruction' to travel amounting to a 'traffic hazard'. Pedestrians were unable to see the 'movement and direction' of vehicular traffic passing on and approaching from the opposite side of the tree. Similarly, motorists about to negotiate a turn around the tree were prevented from obtaining a view of persons proceeding afoot on the other side of the tree. The condition so created, the petition follows, constituted a 'dangerous nuisance and negligence per se'.

The petition alleges five specific acts of negligence on the part of the motorist: (1) Reckless driving; (2) Failure to keep his vehicle under control so as to stop within the assured clear distance ahead; (3) Failure to keep a proper lookout ahead and failure 'to see the plaintiff herein'; (4) Excessive speed; (5) Failure to yield the right-of-way to a pedestrian already proceeding in the crosswalk.

It is further alleged that if his vision were not obscured by the tree, plaintiff would have seen the approaching automobile in time to remove himself from its path. The city had actual or constructive notice of the obstruction and could reasonably have foreseen danger and hazard from its existence. The act of erecting and maintaining the tree 'set in motion a chain of circumstances' which operating in concurrence with the motorist's negligence, proximately caused plaintiff's injury. Absent such combined fault on the part of the defendants, the mishap would not have happened.

The journal entry is silent as to the reasons assigned by the lower court for its action. Plaintiff asserts: (1) The acts alleged against the city fall within the orbit of its proprietary functions; (2) The petition states a cause of action against the city for concurrent negligence and maintenance of a nuisance.

The cities and towns of this State have for a long time carried on the practice of decorating their downtown streets during the Yule season. Year after year, many a municipality erects a Christmas tree at some central point in the community. It is not contended in the case under consideration that the object and purpose of such project, in so far as the City of Bristow is concerned, was one of pecuniary gain or proprietary interest. It is apparent without necessity of belaboring that the custom of decorating serves to direct the minds of the people to Christ's birthday and to remind them of the salutary principles He taught while here on earth.

When joining in the celebration of Christmas in the manner and to the extent shown, the City of Bristow did not assume any proprietary or corporate duties, but was acting in a governmental capacity and within its power to promote the health, safety, morals, and general welfare of the inhabitants. In Pope v. City of New Haven, 91 Conn. 79, 99 A. 51, 52, L.R.A.1917B, 1239, the court held a city participating in a Fourth of July festivity was exercising a governmental and not a proprietary function. We quote from the body of the opinion:

'While there is no United States statute making § similar provision, the different departments of the government recognize, and have recognized since the government was established, July 4th as a national holiday. Throughout the country it has been recognized and celebrated as such. These celebrations, calculated to entertain and instruct the people generally and to arouse and stimulate patriotic sentiments and love of country, frequently take the form of literary exercises consisting of patriotic speeches and the reading of the Constitution, accompanied by a musical program including patriotic airs, sometimes preceded by the firing of cannot and followed by fireworks. That such celebrations are of advantage to the general public and their promotion a proper subject of legislation can hardly be questioned. From the nature of the case it is apparent that in the case in hand the city could derive no pecuniary or other special advantage from such a celebration.'

In 37 Am.Jur. 727, Municipal Corporations, Section 114, this language is found:

'The governmental functions of a municipal corporation are those conferred or imposed upon it as a local agency, to be exercised not only in the interest of its inhabitants, but also in the advancement of the public good or welfare as affecting the public generally. They include the promotion of public peace, health, safety, and morals, as well as the expenditure of money, particularly relating to public improvements, the expense of which ultimately is borne by the property owners. The distinction between acts in the performance of a governmental function and those in the performance of a corporate or proprietary function is that in the case of the former, the municipal corporation is executing the legislative mandate with respect to a public...