Gourley v. City of Okla. City

• Decision Date: 07 October 1924
• Docket Number: Case Number: 14959
• Citation: 230 P. 923,104 Okla. 210,1924 OK 861
• Parties: GOURLEY v. CITY OF OKLAHOMA CITY et al.
• Court: Oklahoma Supreme Court

1924 OK 861

230 P. 923

104 Okla. 210

GOURLEY v. CITY OF OKLAHOMA CITY et al.

Case Number: 14959

Supreme Court of Oklahoma

Decided: October 7, 1924

Syllabus

¶0 1. Torts--Causal Connection Between Injury and Acts of Defendant--Necessity for Proof.

In an action for damages the plaintiff must show, by substantial evidence, a causal connection between the injury and the acts of defendant complained of, and that the acts of the defendant were the direct and proximate cause of the injury. When such proof is insufficient, the court may properly instruct a verdict for defendant.

2. Negligence -- Contributory Negligence -- Right to Instruction.

The defense of contributory negligence under section 6, art. 23, of the Constitution being made a question of fact to be determined by the jury, it is the duty of the court in such cases, where an instruction on this theory is asked, to instruct the jury that one who has negligently contributed to his own injury cannot recover, and a refusal to give such instruction when asked is error.

3. Same--Contributory Negligence as Bar to Recovery.

The law will not weigh or apportion the concurring negligence of plaintiff and defendant. There can be no recovery by plaintiff who has been guilty of contributory negligence.

4. Same -- Doctrine of Comparative Negligence.

The doctrine of comparative negligence does not obtain in this state.

5. Appeal and Error--Inadequate Instructions--Necessity for Requesting Instructions.

The rule is well established that where the instructions of the court do not cover all the phases of the case, counsel is bound to call the court's attention to the omission by an appropriate request for additional instructions, or be precluded from making such failure available as reversible error.

Horton & Horton, for plaintiff in error.

Anglea, & Crabb and R. E. Wood, for defendants in error.

THOMPSON, C.

¶1 This action was commenced in the district court of Oklahoma county, Okla., by Austin R. Gourley, plaintiff in error, plaintiff below, against the city of Oklahoma City, a municipal corporation, Wm. Neubauer, the Oklahoma Cement Floor Company, a corporation, and Dolese Brothers, a corporation, defendants in error, defendants below, for the recovery of the sum of $ 485.35, claimed as damages for injury to the automobile of plaintiff in error. The parties will be referred to in this opinion as plaintiff and defendant's, as they appeared in the lower court. The petition of plaintiff alleges, in substance, that on the 7th day of August, 1922, he was keeping his automobile at a garage located on the west side of an alley in the city of Oklahoma City, which alley was laid out and dedicated to the public use, and that plaintiff was using said alley to enter his said garage; that a sanitary sewer had been constructed in said alley by the city with a manhole, which the city had wrongfully neglected to grade properly, but allowed the sewer to extend above the level of said grade, leaving a hole on the north of the center part of said manhole; that weeds had grown over said manhole and plaintiff was unable to see the said manhole and had no knowledge of its existence; that the plaintiff had used said garage from the 28th day of July, 1922, until the 7th day of August, 1922; that on or about the 5th day of August, 1922, the defendants Wm. Neubauer and the Oklahoma Cement Floor Company began the construction of a building on the east side of said alley opposite the garage in which plaintiff was keeping his car, and that the defendant Dolese Brothers delivered to the defendants Wm. Neubauer and the Oklahoma Cement Floor Company, at their instance and request, sand, crushed rock, and cement, dumping the same in the alley; that on the 7th day of August, 1922, plaintiff attempted to enter said garage, and after looking over the ground determined it was necessary to drive along the west side of said alley, past his said garage; and back his car onto the sand and enter the garage, and, in attempting to do so, the front of the car entered the weeds, the front wheels dropping into a hole left in the construction of the manhole, causing the machinery of the car to be seated on said manhole and damaging the car in the sum of $ 485.85, consisting of five items, which are set forth in said petition. The petition was not verified.

¶2 The defendant city of Oklahoma City, filed a separate answer, consisting of a general denial and alleging, among other things, that the negligence of said city was not the direct and proximate cause of said damage, but that said damage, if any, sustained by plaintiff, was due to the contributory acts and negligence on part of the plaintiff. The defendant Wm. Neubauer and the Oklahoma Cement Floor Company filed their amended separate answers, which are identical, in which they admitted that they permitted the Dolese Brothers to pile sand, gravel, and cement in said alley, but, by way of avoidance, they further pleaded that they had a building permit, which, under the ordinances of Oklahoma City, permitted them to pile said construction material in said alley, and that said building permit was in force and effect on the date that the damages are claimed to have been sustained, and for their further answer each of them denied each and every allegation in said plaintiff's petition, but admitted that plaintiff drove down the west side of the alley, as alleged, and that if he saw what he was doing, as alleged in his petition, he assumed the risk in connection with driving down the west side of the alley. To which several answers plaintiff filed his reply, denying the allegations of said answers which were inconsistent with plaintiff's petition. The cause came on for trial on the 18th day of June, 1923, before a jury, and at the close of all the evidence in the case the defendants moved the court to instruct the jury to return a verdict for each of the several defendants, and the court sustained the motions of the defendants Wm. Neubauer and the Oklahoma Cement Floor Company on the grounds that they had a license or right to use the alley in placing their material in the alley in constructing the building, in which they were engaged, and that said material was placed in the alley rightfully, and if there was any material extending beyond the center line of the alley, that the same did not increase the conditions that existed there, nor did it contribute to the injury of plaintiff's automobile, but refused to sustain the motion of the defendant city of Oklahoma City, to which rulings of the court the plaintiff excepted, and the city of Oklahoma City excepted, and upon said order of court the jury rendered a verdict in favor of the defendants Wm. Neubauer and the Oklahoma Cement Floor Company.

¶3 The plaintiff then moved the court to direct the jury to return a verdict for the plaintiff against the city of Oklahoma City, leaving the amount of damages alone to be determined by the jury for the reason that under the law and admitted facts the plaintiff was entitled to recover actual damages sustained by the plaintiff, which motion was refused by the court and the plaintiff reserved an exception. The case was submitted to the jury upon instructions of the court as between the plaintiff and the defendant city of Oklahoma City, and the jury returned its verdict against the plaintiff and in favor of the defendant Oklahoma City. A motion for a new trial was duly filed and overruled, exceptions reserved, and judgment was pronounced...