City of Okmulgee v. Hemphill
| Decision Date | 04 October 1938 |
| Docket Number | 28038. |
| Citation | 83 P.2d 189,183 Okla. 450,1938 OK 474 |
| Parties | CITY OF OKMULGEE v. HEMPHILL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. The proximate cause of an injury must be the efficient cause which sets in motion the chain of circumstances leading to the injury; if the negligence complained of merely furnishes a condition by which the injury was made possible and a subsequent independent act caused the injury, the existence of such condition is not the proximate cause of the injury.
2. Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the causes.
3. Concurrent causes are causes acting contemporaneously and which together cause the injury, which injury would not have resulted in the absence of either.
4. Where plaintiff, in crossing a street at an intersection encountered a pool of water near the curb and while walking around the pool of water was struck by an automobile, the water created merely a "condition" making the injury possible, and was not a concurring cause of such injury.
Appeal from Superior Court, Okmulgee County; Harland A. Carter Judge.
Personal injury action by R. V. Hemphill against the City of Okmulgee State of Oklahoma, and another. From a judgment in favor of the plaintiff, the named defendant appeals.
Judgment reversed and cause remanded, with directions to enter judgment for the named defendant.
W. C. Alley, of Okmulgee, for plaintiff in error.
C. D. Lewis, Harry D. Pitchford, and Jack Pitchford, all of Okmulgee, for defendant in error.
The plaintiff recovered a verdict and judgment against the city of Okmulgee and James Hess for personal injuries from being struck by an automobile driven by Hess. The judgment became final as to Hess. The city appeals.
At about 7:30 p. m. on March 30, 1935 the plaintiff was walking north on the west sidewalk of Porter Avenue within the city of Okmulgee, accompanying a lady to a picture show. They came to the intersection of Porter Avenue and 8th Street. This placed them on the southwest corner of the intersection. They stepped down off the curb at that corner and proceeded north across 8th Street toward the northwest corner of the intersection. There had been a hard rain that afternoon and the storm sewer catch basin in the curb at the northwest corner was either of insufficient dimensions to carry off the water or it had become clogged. This caused water which had not yet drained off to gather in a pool in 8th Street and Porter Avenue at the northwest corner. Accordingly, when plaintiff and the lady approached the curb, to step up on the sidewalk at that corner, they found that a pool of water about four feet wide was in their path. They would either have to wade through the pool or jump it in order to get on the sidewalk. They walked toward the northwest, to go up over the parkway, and thus keep out of the water. After they had proceeded four or five steps toward the west or northwest, in the street, plaintiff was struck by an automobile approaching from the east on 8th Street, and being driven by the defendant Hess. The defendant Hess is not connected in any official capacity with the defendant city. It was shown that he was speeding, driving without lights, and violating several city ordinances. As stated above, he does not appeal.
The defendant city contends first that the accumulation of water in the street, under the circumstances, was not negligence, and, second, that even though same be considered negligence, still it was not the proximate cause or even a concurring cause of plaintiff's injury but that the negligence of Hess was the proximate cause thereof. After thorough consideration we are of the opinion that the second contention is correct, which makes its unnecessary to consider the question of negligence itself.
Assuming, without deciding, that it was negligence on the part of the city to permit its sewer or street to remain in such condition as to leave the pool of water in the pathway of pedestrians, still it does not follow that the city is liable for such negligence unless same was a proximate cause of the accident. In order that a defendant be liable under such circumstances his negligence need not be the sole cause but it must at least be a concurrent cause. As stated in Munroe v. Schoenfeld & Hunter Drilling Co., 178 Okl. 149, 61 P.2d 1045, if the negligence merely creates a condition by which the injury is made possible, and a subsequent independent act of some other person causes the injury, the defendant is not liable. This is because the negligence is not the proximate cause of the injury. In the second court syllabus of that case we said [page 1046]: "The proximate cause of any injury must be the efficient cause which sets in motion the chain of circumstances leading to the injury; if the negligence complained of merely furnishes a condition by which the injury was possible and a subsequent independent act caused the injury, the existence of such condition is not the proximate cause of the injury."
We state at this point that the question whether the city would be liable should it force a pedestrian into a crowded, dangerous traffic area, the pedestrian being forced there because he had no other choice, is not before us. That was the situation in the Missouri cases, hereinafter cited. We express no opinion on whether that would make a difference, but leave the situation to be met when it arises. The evidence reveals that in the instant case the automobile which struck plaintiff was the only car in sight, in any direction. Under the circumstances of the case the most that can be said is that the pool of water caused the plaintiff to take a course where he would be more likely to be struck than if he were on the sidewalk. And when this is said, then all that has been said is that the pool of water constituted merely "a condition" by which the injury was made possible, within the meaning of the Munroe Case, supra, and the decisions from other jurisdictions hereinafter discussed. See those authorities, infra, and 17 A.L.R. 646, annotation.
It might be said that but for the presence of the water the defendant would have been on the sidewalk and on his way, before Hess' car reached that point; that, therefore, but for the pool the accident would not have occurred. It could with equal logic be said that had not the plaintiff stopped and discussed the weather with some acquaintance down the street, he likewise would not have been struck. It must be borne in mind that when we say that "but for" the pool of water he would not have been struck, it does not follow that the pool of water caused the injury, or even helped cause it. In order truthfully to say that proximate cause exists, there must be some actual causal connection between the negligence and the injury. Had plaintiff gotten stuck in the water or mud, if any, or had he slipped and the automobile struck him there, or had the car skidded in the water and resultingly veered into the plaintiff, the two acts of negligence, that of the city and that of Hess, would possibly be joined; there would be something to "tie them together" in the common result which they both had concurrently caused. See the Storey Case, infra.
Negligence to render a person liable, need not be the sole cause of an injury. Where several causes combine to produce an injury a defendant is not relieved from liability because he is responsible for only one of them. It is sufficient if his negligence is an efficient cause, without which the injury would not have resulted. Where several causes producing injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the causes. Northup v. Eakes, 72 Okl....
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