Hayes v. Okla. City
| Decision Date | 30 April 1940 |
| Docket Number | Case Number: 29295 |
| Citation | 187 Okla. 490,103 P.2d 563,1940 OK 213 |
| Parties | HAYES v. OKLAHOMA CITY |
| Court | Oklahoma Supreme Court |
¶0 1. NEGLIGENCE--Essential elements of actionable negligence.
"To constitute actionable negligence, where the wrong is 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 defendant to perform that duty; (3) injury to the plaintiff resulting from such failure."
2. SAME--Care required of owner of premises for safety of invitee.
"The duty owing to an invitee from the owner of a premises is to use ordinary care to protect him against dangers which the owner either knew existed or should have known existed."
3. SAME--Failure of evidence showing primary negligence.
"Where plaintiff fails to show primary negligence or breach of duty on the part of' defendant, the judgment should be for defendant."
Appeal from Court of Common Pleas, Oklahoma County; Chas. W. Conner, Judge.
Action by Mrs. Nora M. Hayes against the City of Oklahoma City. Judgment for defendant, and plaintiff appeals. Affirmed.
Hodge & Hodge, of Oklahoma City, for plaintiff in error.
A. L. Jeffrey, Municipal Counselor, J. L. Gowdy, Asst. Municipal Counselor, and J. O. Moss, all of Oklahoma City, for defendant in error.
¶1 Mrs. Nora M. Hayes brought an action in the court of common pleas of Oklahoma County against the city of Oklahoma City, a municipal corporation, and when the trial judge sustained a motion for a directed verdict, she brought this appeal.
¶2 She sought to recover damages for injuries inflicted upon her due to the negligence of the city. She had a permit from the city to fish in one of its lakes. There was a wooden dock from the east shore of the lake extending in a westerly direction into the lake, from which persons fished. May 2, 1938, she was fishing from this dock, and while walkMg along the same toward the shore in an effort to land a fish, she stepped on a board that was loose. As a result she lost her balance and fell through a known hole in the walk into the lake, to her injury. We are convinced from reading her pleading, her testimony, and her briefs that the negligence of the city of which she complains as the direct and proximate cause of her injury was the loose board. As we view the case, her contention is that she fell into the lake as a result of losing her balance by stepping on the loose board, and the fact that she fell through the known hole instead of over the side of the structure is immaterial to the issue of negligence. The defective condition was the loose board.
¶3 One of the contentions of the city is that the plaintiff's evidence wholly fails to establish primary negligence on the part of the city in that she failed to show that the city actually knew of the existence of the loose board or that it had been loose such a period of time that notice or knowledge would be inferred. We agree.
¶4 The parties are in accord with respect to the duty of the city to the plaintiff. The city owed plaintiff, an invitee, the duty to use ordinary care to protect her against dangers the city knew existed, or should have known existed. McKee v. Bowlin, 184 Okla. 486, 87 P.2d 1079, and other cases.
¶5 We do not understand the plaintiff asserts that there is positive evidence the city, through its agents, knew of this condition, but rather that the evidence permits the inference of knowledge, actual or constructive, from the nature of the defect complained of. Plaintiff has cited many decisions of this court concerning the rules governing a motion for a directed verdict, and its effect upon the evidence, and we recognize the rule of law announced therein as one of the elementary rules of our procedure. Smith v. Rockett, 70 Okla. 244, 192 P. 691, and many other cases.
¶6 But we are doubtful whether the evidence on some of the circumstances of the incident can support reasonable inferences of the violation of a particular element of the...
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