Armstrong v. City of Tulsa

• Decision Date: 13 May 1924
• Docket Number: Case Number: 14686,Case Number: 14433
• Citation: 1924 OK 532,226 P. 560,102 Okla. 49
• Parties: ARMSTRONG v. CITY OF TULSA et al. and OKLAHOMA NAT. GAS CO. et al. v. ARMSTRONG.
• Court: Oklahoma Supreme Court

1924 OK 532

226 P. 560

102 Okla. 49

ARMSTRONG v. CITY OF TULSA et al. and OKLAHOMA NAT. GAS CO. et al. v. ARMSTRONG.

Case Number: 14433

Case Number: 14686

Supreme Court of Oklahoma

Decided: May 13, 1924

Syllabus

¶0 1. Negligence -- Damages -- Burden of Proof.

In order to recover damages for an injury because of negligence the burden is on the plaintiff, not only to show negligence, but to prove that such negligence was the proximate cause of the injury.

2. Same -- Elements of Actionable Negligence.

To constitute actionable negligence, where the wrong is not willful and intentional, three essential elements are necessary: (1) The existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) failure of the defendant to perform that duty; and (3) injury to the plaintiff approximately resulting from such failure.

3. Same -- Defective Conditions -- Liability of Independent Contractor.

The general rule is that after an independent contractor has turned the work performed by him over and it has been accepted by the proprietor, the contractor incurs no further liability to third parties by reason of the condition of the work, but the responsibility, if any, for maintaining or using it in its defective condition is shifted to the proprietor. The contractor remains liable, if at all, only to the proprietor for a breach of his contract.

4. Same -- Relief from Liability by Acceptance of Work.

All the acceptance that is required by a proprietor of the work of a contractor, in order to relieve the contractor of liability for injuries to third persons after the acceptance is a practical acceptance after the completion of the work; a formal acceptance not being required.

5. Municipal Corporations -- Liability for Injuries From Defective Streets.

Ordinarily, a municipality is not liable for an injury caused by a defect in a public street, except where it has neglected some duty in that respect after it has had notice of the defect, or unless the facts and circumstances are such as to warrant an inference of notice or knowledge of such defect, or the defect had existed for such a length of time that by the exercise of reasonable diligence it might have been known and corrected.

6. Same--Negligence.

A municipality is charged with the duty of maintaining streets in a reasonably safe condition for travel; this duty involves the anticipation of defects that are the natural and ordinary result of use and climatic influences, and the municipality may be charged with constructive notice of the existence of such defects by reason of its failure to so anticipate them and its neglect to make sufficiently frequent and careful examinations and inspections to enable it to discover them.

7. Same--Notice of Defective Conditions--Jury Questions.

Where there is evidence showing that a defective condition of a sewer ditch at various places in a street had existed for a period of three or four weeks, the question of whether the existence of such defective condition for such period of time was sufficient to charge the municipality with notice thereof, and whether, having notice of this condition, it should have anticipated the condition of said ditch at other places, and whether, being charged with notice of the defects in said ditch near the place where an accident occurred, it was charged with notice of like defects at the place of the accident, which ordinary care would have discovered, were questions of fact which should have been submitted to the jury.

8. Same--Latent Defects.

If a defect in a street is a latent one, notice thereof will not be imputed to the municipality, provided the defect could not have been discovered by the exercise of ordinary care.

9. Same--Jury Questions.

While ordinary care must be exercised both as to patent defects and also as to latent defects, yet, if there is no reason to suppose the existence of latent defects, they need not be searched for. However, it cannot be said, as a matter of law, that there was no reason to suppose the existence of such defects, and they need not be searched for, but this, as well as whether such defects could have been discovered by the exercise of ordinary care, and whether the municipality exercised such care, were questions of fact for the determination of the jury.

10. Trial -- Demurrer to Evidence--Consideration.

The test to be applied to a demurrer to the evidence is that such demurrer admits all of the facts which the evidence in the slightest degree tends to prove and all the inferences and conclusions which may be reasonably and logically drawn therefrom, and the plaintiff is entitled to every inference which the evidence, considered in the light most favorable to him, reasonably tends to prove.

11. Negligence--Province of Jury.

In an action for injury caused by negligence, the court should not take the case from the jury except where the facts are such that all reasonable men must draw the same conclusion from them.

Error from District Court, Tulsa County; Albert C. Hunt, Judge.

Action by May Armstrong against the City of Tulsa and others. Judgment for defendants, and plaintiff appeals. Affirmed in part and reversed in part.

Robinett & Ford for plaintiff in error.

I. J. Underwood and Harry L. S. Halley, for defendant in error City of Tulsa.

Humphrey & Campbell, for defendant in error Oklahoma Natural Gas Company.

James P. Gilmore, Charles A. Loomis, A. F. Moss, and H. R. Williams, for defendants in error Tibbets & Pleasant.

NICHOLSON, J.

¶1 May Armstrong brought suit against the city of Tulsa, a municipal corporation, Tibbets & Pleasant, a corporation, and the Oklahoma Natural Gas Company, a corporation, to recover damages for personal injuries alleged to have been sustained by her by reason of a defective condition of a street in the city of Tulsa. At the conclusion of the plaintiff's evidence, the court sustained the separate demurrers of the defendants thereto, and rendered judgment in their favor, from which the plaintiff has appealed.

¶2 The evidence discloses that the Oklahoma Natural Gas Company had lowered its gas main at the intersection of Rosedale and Admiral streets in the city of Tulsa to a depth of about 10 feet, in order to permit the construction of a sewer along Rosedale street above the gas main. The ditch carrying the gas main ran in an easterly and westerly direction across Rosedale street. The sewer ditch ran in a northerly and southerly direction across Admiral street. The defendants Tibbets & Pleasant, independent contractors, had constructed the sewer for the city along the west side of Rosedale street. The sewer was laid above the gas main, and the ditches crossed at right angles. These ditches had been filled some three or four weeks before the plaintiff was injured. The streets were not paved, and there were no sidewalks on said streets at the point where they intersected. There was a beaten path across the street which crossed the sewer ditch at a point where it intersected with the gas main ditch. On the morning of August 16, 1921, the plaintiff was crossing the street in this beaten path, and when she reached the point where the ditches crossed, the earth caved in, causing her to fall a distance of about four feet, as a result of which her left foot was broken and her arm injured. She was confined to her bed for about five months, and was compelled to walk on crutches for several months thereafter.

¶3 The plaintiff testified that she had crossed the street, at the identical place where she was injured, about three weeks prior to the day of the accident; that there was nothing on the surface to indicate that the street was unsafe at this place, and that it appeared to be in the same condition on this day that it was in three weeks before.

¶4 C. A. Bowen testified that he lived about 55 feet from the street intersection; that the sewer ditch had settled, and there were holes in the street in front of his house; that he had observed the condition of the ditch, and while the surface thereof appeared to be hard, it had been undermined by water flowing down the sewer ditch. He further testified that the city had flooded the street above the intersection, a few days before the accident, and the water had flowed down the sewer ditch; that at the point where the accident occurred the surface was hard, but was undermined by water.

¶5 Charles Baird testified that for three or four weeks before the accident the sewer ditch was in bad condition; that water had caused the earth below the surface to settle, but he did not observe that the surface was affected in any way.

¶6 An examination of the record convinces us that the court did not err in sustaining the demurrer of the Oklahoma Natural Gas Company, because the evidence wholly fails to show any actionable negligence on the part of this company. It appears that the gas company had lowered its gas main in order that the sewer ditch might be laid; that after this work was completed, the sewer ditch was laid above the gas main. The gas company had filled its ditch, and the evidence shows that its work had been completed three or four weeks before the accident. There is no evidence showing, or tending to show, that the gas company left the ditch unfilled, or that it negligently filled the same, but, to the contrary, it affirmatively appears that the ditch filled by this company was packed and hard from much travel at all places except at the point where the sewer ditch crossed it. Apparently, the only excuse for making the gas company a party defendant was because the sewer ditch caved in at a point where it crossed the ditch of the gas company. There was no evidence that water ran down the gas line ditch, or that it was in any manner unsafe. In fact, the plaintiff failed to prove any fact indicating that the gas company was guilty of negligence in any particular, and in order to...