Cities Serv. Oil Co. v. Kindt

• Decision Date: 08 July 1947
• Docket Number: Case Number: 32974
• Citation: 1947 OK 219,200 Okla. 64,190 P.2d 1007
• Parties: CITIES SERV. OIL CO. v. KINDT
• Court: Oklahoma Supreme Court

1947 OK 219

190 P.2d 1007

200 Okla. 64

CITIES SERV. OIL CO. v. KINDT

Case Number: 32974

Supreme Court of Oklahoma

Decided: July 8, 1947

Syllabus

¶0 1. MUNICIPAL CORPORATIONS - Duty of operator of filling station to see that sidewalks are kept in safe condition for pedestrians.

Where it is necessary for customers of a filling station to enter said station over a sidewalk which is used by pedestrians, said operator of said filling station is under a duty to exercise reasonable care to see that the sidewalks are kept in a safe condition for pedestrians.

2. MUNICIPAL CORPORATIONS - Whether sufficient time elapsed to constitute "constructive notice" to filling station operator of unsafe condition of sidewalk, question of fact for jury.

Where customers of a filling station use a sidewalk in the business section of a city to approach said station in automobiles, and the evidence justifies a finding that a spot of grease had remained on said sidewalk for several minutes before a pedestrian, walking on said sidewalk, slipped thereon, the question of whether a sufficient time had elapsed to constitute "constructive notice" to the filling station operator of the unsafe condition of the sidewalk was a question of fact for a jury.

3. MASTER AND SERVANT - Company not liable for injuries to pedestrian, where evidence fails to show agency of operator.

Where oil company did not have the right, nor did it undertake to exercise the right, to control gasoline filling station operator and his employees in the details to be followed by them in keeping oil company's station clean, and employees were free to perform such work as they saw fit, company was not liable to pedestrian for injuries sustained by her in fall on sidewalk in front of station because of oil on sidewalk.

4. TRIAL - NEW TRIAL - Held, individual defendant did not receive free, deliberate, unbiased and conscientious judgment of jurors, and, under such circumstances, entitled to new trial.

Where a jury returns a verdict into court against a corporate defendant and its alleged agent, and while still in their jury box the foreman of the jury advises the trial judge that the verdict returned was not the verdict the jury intended to return and that the jurors intended to hold only the corporate defendant liable, and upon being questioned by the trial judge and counsel for defendants, it is established that they did not intend to hold both defendants liable, and thereafter the jury returns a verdict under such circumstances as to conclusively establish that the only reason they returned the second verdict against both defendants was to hold the corporate defendant liable, held, under such circumstances, that the individual defendant did not receive the free, deliberate, unbiased, and conscientious judgment of the jurors to which he was entitled, and under such circumstances said defendant is entitled to a new trial.

Appeal from District Court, Washington County; James T. Shipman, Judge.

Action by Ferol Kindt against Cities Service Oil Company and Leonard Richison. Judgment for plaintiff, and both defendants appeal. Reversed and remanded.

Ray & Selby, of Bartlesville, for plaintiff in error Leonard Richison.

W.E. Green, J.C. Farmer, Robert J. Woolsey, David H. Sanders, and Otho Flippo, all of Tulsa, for plaintiff in error Cities Service Oil Company, a corporation.

Chas. W. Pennel (A.O. Harrison, of counsel) both of Bartlesville, for defendant in error.

BAYLESS, J.

¶1 Plaintiff, Ferol Kindt, brought an action in the district court of Washington county against the defendants, Cities Service Oil Company and Leonard Richison, to recover damages for personal injuries received by plaintiff when she fell upon the sidewalk in front of a filling station owned by Cities Service. Plaintiff alleged in her petition that defendant Richison was the agent of Cities Service. Both Cities Service and Richison contended they were guilty of no negligence, and Cities Service defended for the further ground that Richison was an independent contractor. The trial resulted in a verdict and judgment in favor of plaintiff in the sum of $2,000, from which judgment both defendants have appealed. The parties will be referred to as they appeared in the trial court.

¶2 Plaintiff's evidence established the following facts: The defendant Richison, at the time of the accident and prior thereto, had a Cities Service filling station under lease. The filling station was located on the southeast corner of Fourth street and Keeler avenue in the city of Bartlesville, just across the street from the Phillips Petroleum Company's office building. There were two driveways or drive-ins leading into the station, one from each of the intersecting streets. The gasoline pumps were set out in an open area in front of the station proper in two rows in the customary manner. Customers drove in and out from either street, crossing the sidewalk in doing so. The plaintiff lived on Keeler avenue, a few blocks south of the station, and passed along the sidewalk in front of the station several times daily in going to and from her work. On the day of the accident plaintiff, while walking to work, slipped on a "small patch of oil between a half dollar and dollar in size" on the sidewalk in front of the filling station. Her foot slipped and she fell, causing her to receive a fractured kneecap and other injuries. There were two spots of oil on the sidewalk, the small spot which caused plaintiff's fall, and a larger spot close by, perhaps a foot or less from the smaller spot. It was observed after the accident that the smaller spot was smeared by plaintiff's heel mark. The accident happened between 1:15 and 1:30 p.m. It was not shown that defendant Richison or any of his employees were responsible for the oil being on the sidewalk or that they had any knowledge of its existence at the time of the accident. To establish that the oil had been on the walk for some period of time in order to charge defendant Richison with constructive knowledge, plaintiff testified that for a number of blocks south of the filling station there was nothing to obstruct her view of the station; that on the day of the injury she looked straight ahead as she walked north on Keeler avenue toward the filling station; that she watched the entrance to the filling station approximately from the time she was five blocks away and she was positive that she observed it for the last three blocks and she did not observe any cars on the walk or any driving in or out of the station; that it took approximately eight minutes for her to walk three blocks, traveling at the pace she was going on that day. Defendant Richison testified that he observed the area where the accident occurred some time between 12:30 and 1:00 and he was positive there was no oil there at that time. He further testified that he serviced about 50 to 80 cars per day. At the close of plaintiff's evidence in chief, both defendants demurred to the evidence and they renewed their demurrers at the close of all of the evidence.

¶3 The first question that arises is, What duty does the operator of a filling station, whose customers traverse a public sidewalk in going to and from the filling station, owe to those who travel on the sidewalk, where the walk adjoins the filling station property and for practical purposes is used as part of the station's premises in connection with the operation of the business? It is not necessary to decide whether this duty is equal to or greater than that owing to the licensee or to an invitee. He is not an insurer of their safety. He owes a duty of reasonable care to keep the premises free of things of a nature dangerous to pedestrians which may come to be there as a natural result of the operation of the business. 33 A.L.R. 181, annotation. The defendants in their briefs do not contend that because said accident occurred on sidewalk used by customers entering the filling station instead of upon their premises that a different rule as to their liability would apply.

¶4 In order to establish negligence on the part of defendant Richison, plaintiff must show that Richison or his employees placed the oil on the walk, or had knowledge of its being there, or that it was there such a length of time that he should have known of its presence. Owen v. Kitterman, 178 Okla. 483, 62 P.2d 1193; Rossberg v. Montgomery Ward & Co., 110 Mont. 154, 99 P.2d 979; Drotar v. Penn. Ry. Co., 120 N.J.L. 119, 199 A. 75. The nature of defendant's business was such that he should expect motor oil to accumulate on the station premises proper, as well as on the sidewalk in front of the station. The danger of an accumulation of grease or motor oil on a heavily traveled sidewalk is too obvious to require further discussion. The question of proximate cause was clearly for the jury to pass on. The question that has caused us the most trouble, and it is not free from serious doubt, is that of notice or constructive knowledge of the existence of oil on the sidewalk at the time of the injury. It was not shown that defendant either placed the oil on the walk or that he had actual knowledge of its existence. Was the time element sufficient to charge him with constructive knowledge? The jury could reasonably infer from the evidence that the condition had existed for eight minutes or longer.

¶5 Richison testified that he observed the area where the accident occurred about 30 minutes or an hour before the accident. The court held in Van Wye v. Robbins (Cal.App.) 120 P.2d 507:

"Where evidence justified finding that a spot of grease had remained upon surface of a free parking space provided by a market operator for his customers for more than 20 minutes before a customer slipped thereon, whether a sufficient time had elapsed to constitute 'constructive notice' to market operator of unsafe condition of the premises was a 'question of fact.' "

¶6 This holding has been approved many times by the Supreme Court of California in...