Henryetta Const. Co. v. Harris, 40348

• Decision Date: 25 May 1965
• Docket Number: No. 40348,40348
• Citation: 28 A.L.R.3d 876,408 P.2d 522
• Parties: , 1965 OK 88 HENRYETTA CONSTRUCTION CO., Plaintiff in Error, v. Jim R. HARRIS, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 522

408 P.2d 522

28 A.L.R.3d 876, 1965 OK 88

HENRYETTA CONSTRUCTION CO., Plaintiff in Error, v. Jim R. HARRIS, Defendant in Error.

No. 40348.

Supreme Court of Oklahoma.

May 25, 1965.

Rehearing Denied and Dissenting Opinion Filed Oct. 26, 1965.

Syllabus by the Court

1. Facts of each particular case are controlling upon question of negligence in respect of dangerous conditions upon the premises, and ordinarily question as to whether owner or occupant has been negligent in that respect toward person whom he has invited upon the premises, or may reasonably expect, is to be decided by the jury.

2. In an action for damages based on negligence, a demurrer to plaintiff's evidence and motion for directed verdict present no question as to the plaintiff's negligence. The questions thereby presented are whether the evidence in any reasonable inference shows negligence on the part of the defendant, and whether such negligence was the proximate cause of plaintiff's injuries.

3. Where a building contractor knows, or by the exercise of ordinary care should have known, that the employees of other contractors and employers would be going in and upon the premises under construction in the performance of their duties, it is the duty of such contractor to exercise ordinary care to keep the premises reasonably safe as to hidden dangers, traps, and snares.

4. Question of proximate cause of an injury, whether from negligence upon the part of the defendant or contributory negligence on the part of the plaintiff, is for the jury when there is competent evidence from which such fact can be determined.

5. Where in a personal injury action for damages plaintiff's doctor in testifying for plaintiff demonstrates in the presence of the jury that plaintiff's 'involuntary muscle pull' is a result of atrophy, and defendant's motion for physical examination of plaintiff, based thereon, is denied, such ruling will not constitute reversible error where it appears that physical examinations were offered prior to trial, and it does not appear that the defendant has been prejudiced.

6. The question of whether a verdict in a given case is excessive must be determined from the facts in the case, and a verdict will not be reduced unless it appears that the verdict is excessive, or results from passion or prejudice.

Appeal from the District Court of Okmulgee County; Claude Garrett, Judge.

Action by plaintiff Jim R. Harris against the defendant, Henryetta Construction Company, to recover damages for personal injuries. From verdict and judgment for plaintiff, defendant appeals. Affirmed.

Rucker, Tabor, Shepherd & Palmer, Robert L. Shepherd, O. H. 'Pat' 'O'Neal, Paul McBride, Tulsa, for plaintiff in error.

K. D. Bailey, Okmulgee, Whit Pate, Norman, Simon B. Spradlin, Oklahoma City, for defendant in error.

JACKSON, Vice Chief Justice.

In the trial court the plaintiff Jim R. Harris, sued the defendant, Henryetta Construction Company, for damages for personal injuries he received when he fell into an open drainage inlet on a bridge being built by the defendant company. From verdict and judgment for plaintiff the defendant has appealed.

In defendant's first proposition for reversal it is said:

'Proposition No. 1: The duty to keep premises reasonably safe for invitees applies only to defects or conditions in the nature of hidden dangers, traps, snares, pitfalls, and the like: owner or occupant of premises is under no legal duty to obviate known and obvious dangers, nor is he liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of reasonable care. The trial court erred in overruling defendant's demurrer to the evidence of the plaintiff and defendant's motion for a directed verdict at the close of the trial as there was a failure of proof of any negligence act on the part of the defendant.'

The evidence shows that the bridge in question had been constructed by defendant company under contract with the State Highway Department. The bridge was located on Interstate Highway No. 35 at its intersection with S. E. 104th Street in Oklahoma City. It appears from the record that the concrete for the surface of the bridge was poured on or about August 3, 1959, at the west side of the bridge, and within a few feet from the north end of the bridge an open drainage inlet was constructed for the drainage of water from the bridge. The inlet is described as 16 inches wide, 28 inches long, and 36 inches deep. The degree of visibility of the inlet from the surface of the bridge is not evaluated by testimony.

A State Highway engineer testified that the normal procedure for installing grates over the inlets was while the concrete was still 'green,' and that this hole or inlet had remained open from August 5, 1959, until September 28, 1959 (the day of the accident), according to his records. He also testified that on September 28, 1959, the bridge was approximately 99% complete.

On September 28, 1959, the asphalt contractor was rolling the asphalt from the roadway to the north end of the bridge and was in the process of 'tying the asphalt in' to the north end of the bridge. This process was accomplished by a ten or twelve ton roller.

Plaintiff was an employee of the State Highway Department. For about a year his responsibilities had consisted of inspecting the paving on several miles of Interstate Highway No. 35 in Oklahoma City, which was then under construction. There were several bridges on this portion of the highway, and while he had no responsibilities for inspecting bridges, it was his responsibility to inspect the 'tie-in' between the surface of the paving and the surface of the bridge. On the day of the accident he was making such an inspection at the north end of the bridge, and testified concerning the accident as follows:

'A. I had driven up to the project where I had some inspectors checking the work of the contractor and they were tying the asphalt in. I finished my checking and walked over to where the men were working. I stood there two or three minutes and this roller was rolling the asphalt from the roadway to the bridge. There was a 10 foot straight-edge lying in its path. I stepped two or three steps forward and stepped back and fell into an open inlet.

'A. Oh, about three and a half steps backward.

'A. Yes, I fell into it and struck the edge of the concrete on the way down and fell into the hole.'

As noted from defendant's proposition No. 1 the duty to keep premises reasonably safe 'applies only to defects or conditions in the nature of hidden dangers, traps, snares, pitfalls and the like', and 'the occupant of premises is under no legal duty to obviate known and obvious dangers'. Defendant's theory that the danger was open and obvious and should have been observed by the plaintiff in the exercise of ordinary care was submitted to the jury. At the request of defendant, the court gave the following instructions:

'Instruction No. 4.

'You are instructed that the Plaintiff, when he came upon the bridge assumed all normal or ordinary risks attendant upon use of the bridge and the Defendant was under no duty to alter the premises so as to eliminate known and obvious dangers. In this respect you are further instructed that the defendant is not responsible or liable for injury to the plaintiff resulting from a danger which was obvious or should have been observed in the exercise of ordinary care.

'You are therefore instructed that if you find that the condition of the bridge while under construction was a normal and ordinary risk then you must return your verdict for the defendant.

'Instruction No. 5.

'You are instructed that it is the duty of the Defendant to keep the premises reasonably safe as to defects or conditions that are in the nature of hidden dangers, traps, snares, and the like, and the Defendant has no duty or obligation to make such conditions known to the Plaintiff if such conditions or defects could have been observed by the plaintiff in the exercise of ordinary care.'

Since the jury was told in Instructions Nos. 4 and 5 that the defendant was not responsible or liable for dangers which were obvious and should have been observed in the exercise of ordinary care, it follows that the jury must have concluded that the open inlet constituted a hidden danger, trap, or snare, for employees of the asphalt contractor and the State Highway Department who would necessarily be working in that area during the 'tie-in' period. The evidence is sufficient to support such a conclusion. Thus the duty to keep the premises reasonably safe as to traps, snares and hidden dangers had been violated.

Defendant invites attention to City of Tulsa v. Harmon, 148 Okl. 117, 299 P. 462; City of Drumright v. Moore, 197 Okl. 306, 170 P.2d 230; Skelton v. Sinclair Refining Company, Okl., 375 P.2d 948; Safeway Stores, Inc. v. McCoy, Okl., 376 P.2d 285; Hull v. Newman Memorial Hospital, Okl., 379 P.2d 701; and Safeway Stores, Inc. v. Sanders, Okl., 372 P.2d 1021. Those cases dealt with situations where the dangers were obvious and as readily apparent to the person injured as they were to the owner or occupant. In the instant case the jury undoubtedly found that the 'inlet' was in the nature of a hidden danger.

In the last sentence of Defendant's Proposition No. 1, it is said that the trial court erred in overruling defendant's motion for a directed verdict 'as there was a failure of proof of any negligent act on the part of the defendant.'

In negligence cases we have frequently said that the facts of each particular case are controlling upon the question of negligence in respect to the dangerous condition of the premises, and whether such facts constitute negligence is ordinarily a question for the jury. Pruitt v. Timme, Okl., 349 P.2d 4.

In Guerrero v. Tiblow, Okl., 382 P.2d 120, we quoted with approval from Breno v. Weaver, 208 Okl. 14, 252 P.2d 487, as follows:

"In an action for...