Jafek v. Pub. Serv. Co. of Okla.

• Decision Date: 24 May 1938
• Docket Number: Case Number: 27939
• Citation: 183 Okla. 32,1938 OK 360,79 P.2d 813
• Parties: JAFEK v. PUBLIC SERVICE CO. OF OKLAHOMA
• Court: Oklahoma Supreme Court

1938 OK 360

79 P.2d 813

183 Okla. 32

JAFEK v. PUBLIC SERVICE CO. OF OKLAHOMA

Case Number: 27939

Supreme Court of Oklahoma

Decided: May 24, 1938

Syllabus

¶0 1. NEGLIGENCE--Insufficiency of Plaintiff's Evidence to Withstand Demurrer.

When there is no evidence introduced by the plaintiff reasonably tending to show negligence on the part of the defendant it is not error to sustain a demurrer to the evidence.

2. HIGHWAYS--Highways Designed to Serve Public Utility Companies as Well as Traveling Public.

A user of vehicles is not, as a matter of law, entitled to the entire highway from property line to property line. The highway not only serves the needs of the traveling public, but may also lawfully serve the public by furnishing the public the conveniences afforded by public utility companies.

3. SAME--Electricity--Necessary Showing to Render Utility Company Liable for Negligence in Erecting or Maintaining Light Pole on Highway.

In order to render a utility company liable for negligence in erecting or maintaining its light pole upon a highway, it is incumbent upon the complaining party to show that the pole alleged to have caused the injuries complained of was erected and maintained upon or so near the highway as to interfere with or obstruct the ordinary use of the highway by the traveling public.

4. NEGLIGENCE--Proximate Cause--Negligence Merely furnishing Condition by Which Injury Was Possible.

If the negligence complained of merely furnished 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.

Appeal from District Court, Nowata County; H. H. Montgomery, Judge.

Personal injury action by Bernard Jafek against the Public Service Company of Oklahoma. From judgment sustaining a demurrer to his evidence plaintiff appeals. Affirmed.

J. Wood Glass, L. C. Colter, and Glenn H. Chappell, for plaintiff in error.

V. E. McInnis, James H. Ross, and Sullivan G. Ashby, for defendant in error.

GIBSON, J.

¶1 The only question presented here is whether the court erred in sustaining a demurrer to the evidence of plaintiff and in rendering judgment for the defendant in a personal injury action, based on the alleged negligence of the Public Service Company of Oklahoma in maintaining an electric light pole along federal highway No. 60 in the city of Nowata, Okla.

¶2 The accident, in which plaintiff was seriously injured, occurred while he was riding with F. W. Brown, and was returning from a short trip out of town. It seems that there is a reverse curve on this highway near the edge of town near where the highway is entered by Hill street from the south. What happened perhaps was best stated by the driver of the car.

¶3 Mr. Brown testified in substance that he invited plaintiff to ride with him to listen to a new radio in his car. Plaintiff accepted, and after drinking two bottles of beer apiece they drove to Alluwe and back. As they were coming onto this reverse curve at the edge of town at 40 miles per hour, a car traveling 15 or 20 miles per hour showed up from the left, on Hill street, and stopped immediately in front, within 18 steps.

¶4 Brown expected the car to stop at the highway. "I figured on cutting in behind," he said, "but was afraid they. would meet me. I didn't have time to think. I had to make up my mind one way or the other and with it."

¶5 Q. You turned to the north of them'?

¶6 A. Yes, because it looked like a clear shot through.

¶7 Q. Then did you run into this pole?

¶8 A. Yes, sir." He declared he did not put on his brakes because of loose gravel.

¶9 The pole, he said, was in a ditch along the road, about 8 or 10 feet east of a six inch wooden culvert that is about 45 feet long. The pole, lie thought, was nearer the shoulder than the center of the ditch, and the shoulder was narrow at the time. The hub of the wheel struck the pole. Both Brown and his passenger seemed to have been knocked unconscious when their car rolled over after striking the pole.

¶10 The plaintiff himself threw no light on the accident. He testified that lie did not pay any attention to the curve, that he was looking south and east at the scenery and "that's the last thing that I remember coming in. * * * The first thing I knew was when I woke up in the hospital sometime next morning."

¶11 Plaintiff introduced the county surveyor, who had made a map of the location, and also other witnesses who testified as to photographs taken at the scene of the accident. In conjunction with these, witnesses were offered who had given the surveyor and photographers the location of the pole, which had been so shattered by the blow that it was removed.

¶12 The evidence of the surveyor, corroborated by the photographs, was to the effect that the pole stood in the ditch about four feet from the edge of the shoulder; that the ditch was about 10 feet wide and 18 inches below the top of the black top surface of the road; that the pole was not in that part of the roadway used for travel.

¶13 We are cited to the decisions which hold that a ease should go to the jury when there is any evidence tending to show negligence. Cline v. Butts, 167, Okla. 378, 29 P.2d 777. We are also referred to decisions which hold that contributory negligence is a jury question, and to cases relating to concurrent negligence. Sections 10056 and 10057, O. S. 1931 (69 Okla. St. Ann. secs. 4 and 5), are also quoted. They relate to use of public highways by public service corporations, and provide that poles shall be erected, placed, constructed and maintained so as not to incommode or endanger the public in the use of its roads, highways and thoroughfares, and that such corporations shall not exercise the rights granted so as to interfere with the free and ordinary use of public highways.

¶14 It is apparent at once from these statutes that those driving vehicles on highways are not entitled to use of the entire highway from property line to property line. Here the state and federal government constructed a roadway with a "black top" for regular vehicular travel with gravel shoulders outside of the "black top." The gravel, of course, was not for ordinary driving. But the pole was 4 feet beyond this shoulder in a ditch, shallow, it is true, but a ditch nevertheless. The question then is, Should a reasonable person have foreseen that the location of such pole would, as a natural consequence, cause in injury? Oklahoma Gas & Electric Co. v. Wilson, 172 Okla. 540, 45 P.2d 750.

¶15 It is not a jury question when there is no evidence reasonably tending to show negligence on the part of the defendant. A., T. & S. F. Ry. Co. v. Phillips, 158 Okla. 141, 12 P.2d 908.

¶16 We do not see how it could reasonably have been supposed that a person driving an automobile along the highway would drive clear off the shoulder and along the ditch. The vehicle driver is not entitled to use of the ditch.

"A user of vehicles is not, as a matter of law, entitled to the entire highway from property line to property line. The highway not only serves the needs of the traveling public, but may also lawfully serve the public by furnishing the public the conveniences afforded by public utility companies. * * *

"* * * As between the traveling public and the company erecting this post, all that could be required was that the location be fixed at a "safe and convenient distance beyond the margin of the road as used."

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