Guthrie v. City of Henryetta, 24684.

• Court: Supreme Court of Oklahoma
• Citation: 57 P.2d 1165,177 Okla. 122,1936 OK 403
• Docket Number: 24684.
• Parties: GUTHRIE v. CITY OF HENRYETTA.
• Decision Date: 19 May 1936

57 P.2d 1165

177 Okla. 122, 1936 OK 403

GUTHRIE
v.
CITY OF HENRYETTA.

No. 24684.

Supreme Court of Oklahoma

May 19, 1936

Evidence showed that automobile was traveling at high rate of speed when deceased was struck; that driver did not stop but crashed through barricade and proceeded at excessive rate of speed over streets which were being repaired, crashed through two other barricades and did not stop until he had reached distant part of city; that he was arrested a short time thereafter and was intoxicated.

Syllabus by the Court.

1. To constitute actionable negligence, where the wrong was not willful or 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 proximately resulting from such negligence to perform that duty.

2. The burden of proof is upon the plaintiff in an action for personal injuries to show that the negligence charged was the proximate cause of the injury.

Appeal from District Court, Okmulgee County; John L. Norman, Judge.

Action by Elizabeth Guthrie, administratrix of the estate of Charles Guthrie, deceased, against the City of Henryetta. From a judgment for defendant on directed verdict, plaintiff appeals.

Affirmed.

Anton Koch, of Henryetta, and Glenn Alcorn, of Tulsa, for plaintiff in error.

W. E. Foster, of Okmulgee, and E. W. Smith, of Henryetta, for defendant in error.

OSBORN, Vice Chief Justice.

This action was instituted in the district court of Okmulgee county by Elizabeth Guthrie, administratrix of the estate of Charles Guthrie, deceased, as plaintiff, against the city of Henryetta, as defendant, wherein plaintiff sought to recover damages on account of certain alleged negligent acts on the part of the officers and agents of said city resulting in the death of the said Charles Guthrie, her husband. The cause went to trial before a jury and at the conclusion of all the evidence the trial court sustained defendant's motion for a directed verdict and entered judgment for defendant from which plaintiff appeals. The parties will be referred to as they appeared in the trial court.

Plaintiff alleges that on or about October 15, 1930, and prior thereto, defendant was engaged in improving and repairing certain of its streets which were a part of U.S. Highway No. 75, leading into and through said city; that in order to make certain improvements said highway was closed to traffic, and at a point where said highway intersected Cummings street in said city, at a point about 300 feet in a northeasterly direction from the place where the repair work was being done, there was erected a barricade; that three small lights were placed near said barricade for the purpose of warning travelers...