City of Tulsa v. Roberts

WELCH, V. C. J. This is an appeal from a verdict and judgment rendered in the district court of Tulsa county, Okla., against the city of Tulsa, for injuries sustained by plaintiff by reason of a fall occasioned when plaintiff stepped from curb level to street level near or directly over a catch basin or street drain, which had been constructed near the street intersection. A part of said drain extended over into the pedestrian cross-way marked off by the city, but that part of the drain was immediately behind a large signal light post. The distance from the curb level to street level at this exact point was 14 inches. The question presented here for our determination is whether the trial court committed error in overruling defendant’s motion for directed verdict. A city has two classes of powers— the one legislative, public, governmental, in the exercise of which 'it is a sovereignty and governs its people; the other proprietory, corporate, or quasi-private, conferred upon it, not for the purpose of governing its people, but for the private advantage of the inhabitants of the city and of the city itself as a legal personality. We have heretofore held that a city is not liable for negligence of employees in cleaning streets and sewers, since the same is the discharge of a governmental function. Spaur et ux. v. City of Pawhuska, 172 Okla. 285, 43 P. 2d 408. A catch basin or street drain is constructed for the purpose of draining the streets and thereby help in keeping them in a sanitary condition. This court has heretofore followed the general rule that in such construction the city has discretion and latitude in determining and fixing grades and elevations, and drainage depressions, and that the city is not liable as negligent, unless the plan or method of construction is palpably unsafe or creates a manifest .danger resulting from a type of construction which all men of reasonable prudence and intelligence would agree was unjustified and unsound planning. See Lewis v. Tulsa, 179 Okla. 176, 64 P. 2d 675; Oklahoma City v. Cantrell, 181 Okla. 56, 72 P. 2d 381; City of Ada v. Burrow, 171 Okla. 142, 42 P. 2d 111. In the Lewis Case, supra, the perpendicular drop was about the same as here. In the Cantrell Case, supra, we held that in such a case, where only one inference could be drawn from the evidence concerning whether city was negligent, the question of negligence became one of law for the court. We regard those cases as decisive of the question, demonstrating that the trial court erred in overruling defendant’s motion for a directed verdict. The judgment is therefore reversed. BAYLESS, C. J., and OSBORN, HURST, and DANNER, JJ., concur. RILEY and DAVISON, JJ., dissent. CORN and GIBSON, JJ., absent.