Pepsi-Cola Bottling Co. of Tulsa, Okl. v. Von Brady, PEPSI-COLA

• Decision Date: 22 October 1963
• Docket Number: PEPSI-COLA,No. 40379,40379
• Citation: 386 P.2d 993
• Parties: BOTTLING CO. OF TULSA, OKLAHOMA, Inc., a corporation, and Albert Coie, Jr., Plaintiffs in Error, v. Maria VON BRADY, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 993

386 P.2d 993

1963 OK 236

PEPSI-COLA BOTTLING CO. OF TULSA, OKLAHOMA, Inc., a corporation, and Albert Coie, Jr., Plaintiffs in Error, v. Maria VON BRADY, Defendant in Error.

No. 40379.

Supreme Court of Oklahoma.

Oct. 22, 1963.

As Corrected Nov. 18, 1963.

Rehearing Denied Nov. 19, 1963.

Application for Leave to File Second Petition for Rehearing

Denied Jan. 7, 1964.

Syllabus by the Court

1. Where a truck is parked in a 'no parking' zone created by city ordinance, which truck is visible for a considerable distance, and a passing car is 'crowded' into the parked truck by another car passing on the left, the parked truck merely created a condition and is not the proximate cause of the injury.

2. Although violation of a city ordinance may be a negligent act, the violation does not constitute actionable negligence unless the injury complained of is the proximate result of such violation.

3. Whether there is any evidence tending to show causal connection between the acts of defendant and the injury complained of is a question of law for the court.

4. Liability cannot be predicated on a prior and remote cause which merely furnishes the condition for an injury resulting from an intervening, unrelated and efficient cause.

5. An injury which could not have been foreseen nor reasonable anticipated as the probable result of an act of negligence is the standard by which the existence of a condition is tested. If not foreseeable, the act of negligence furnishes only a condition.

Appeal from the District Court of Tulsa County; Raymond W. Graham, Judge.

Action for personal injuries against the owner of a truck parked in violation of a city ordinance when plaintiff's car was forced to run into such truck by a third person 'crowding' plaintiff on the left by turning in front of plaintiff's car. From a judgment plaintiff, defendants appeal. Reversed with directions to dismiss.

Alfred B. Knight, Tulsa, for plaintiffs in error.

Wesley V. Disney, Jack I. Gaither, Tulsa, for defendant in error.

JOHNSON, Justice.

This action for personal injuries was commenced in the District Court of Tulsa County, Oklahoma, by defendant in error, hereafter referred to as plaintiff. The petition alleged that on October 6, 1960, plaintiff was driving north on Peoria Avenue in the City of Tulsa; that the defendant (plaintiff in error) by its employee had parked a 1957 Chevrolet truck on the east side of Peoria Avenue, headed north, in a 'no parking' zone; that an 'unknown person' was also driving north, and as he was passing plaintiff's car on the left he suddenly and without warning swerved to the right as he was passing and forced plaintiff to the right and into the rear of defendant's parked truck, causing the injuries alleged. The specific allegations of negligence on the part of the defendant were:

'* * * (a) In that the defendant, Cole, parked said truck and left it standing in a place where official 'no parking' signs were erected;

'(b) In that said truck was so parked and left standing in a dangerous and hazardous position upon a busy and heavily-traveled through street when defendants knew or should have known that it would impede the normal flow of traffic and would create a hazard and danger to traffic upon the through street;

'(c) In that said truck was not parked with the curbside wheels within twelve (12"') inches of the curb;

'(d) And in that in parking said truck and leaving it standing as aforesaid, defendants violated the laws and statutes of the State of Oklahoma and the provisions of Ordinance No. 7110 of the City of Tulsa which were then and there in full force and effect and which are attached hereto, marked 'Exhibit A,' and made a part hereof. * * *'.

The answer of the defendants denied generally the allegations of the plaintiff's petition and alleged that the sole and approximate cause of the accident was the negligence of the unknown third party; that the accident was unavoidable; that plaintiff was guilty of contributory negligence. Plaintiff's reply to defendants' answer was a general denial.

The case was tried before the court, both sides having waived a jury.

The court awarded the plaintiff a judgment for $9,000.00. Upon overruling of defendants' motion for new trial, this appeal was lodged.

But one proposition is submitted by defendants, to-wit: That the trial court erred in not sustaining the defendants' demurrer and in not resolving the issues in favor of the defendants.

This calls for a review of the evidence, which it is conceded is not in conflict.

No question is involved in this case concerning the medical testimony; therefore, the resume of the evidence will be limited to the question of whether the defendant is guilty of actionable negligence.

Plaintiff was the first witness, and she testified that she was going north on Peoria and was about in the intersection of Young and Peoria when 'all at once a green car just came beside me and pushed me--He was even with my car, and he pushed into me, and there was oncoming traffic, and all I could do was swerve quickly to the right and I didn't have time to straighten myself out, and I swung back to the left to avoid a truck, but I still hit it.' She stated further that the truck was facing north on the right side of the street a truck length or so north of Young Street. She was traveling about thirty miles per hour.

There is no conflict in the evidence, so the above facts as set forth in plaintiff's testimony are undisputed and furnish the basis for a decision of this case. Just to clear one point in the record, the allegations of the petition in regard to the parking being too far in the street are not sustained by the evidence. The testimony on this point was that the truck was properly parked except for the city ordinance in respect to the no parking zone. No contention to the contrary is made in the brief.

The rule is well-established in this jurisdiction that violation of a city ordinance does not subject a party to civil liability unless such violation was the proximate cause of the resulting injury. See 65 C.J.S. Negligence § 106, page 655, where the headnote reads:

'In order to establish causal connection, the negligence must have been such that without it the injury would not have occurred; but the existence of such causal connection does not of itself make such negligence the proximate or legal cause of the injury, it being necessary to show that the negligence was the causa causans.'

This headnote is supported by the cases of Elam v. Loyd, 201 Okl. 222, 204 P.2d 280; Sinclair Prairie Oil Company v. Stell, 190 Okl. 344, 124 P.2d 255; Champlin Refining Company v. Cooper, 184 Okl. 153, 86 P.2d 61. In the case first mentioned, we said:

'We have long adhered to the rule that although the violation of a statute may be a negligent act, the violation does not constitute 'actionable negligence' unless the injury complained of is the proximate result thereof and the person injured is a member of the class intended to be protected by the statute and injury is of the kind statute intended to prevent. Sinclair Prairie Oil Company v. Stell, 190 Okl. 344, 124 P.2d 255; Champlin Refining Company v. Cooper, 184 Okl. 153, 86 P.2d 61.'

It is urged by the defendant that there is no causal connection between the violation of the city ordinance and the resulting injury.

In answer thereto the plaintiff urges that the negligent acts of the third party and that of the defendant were concurrent acts, and therefore the defendant is liable.

It would appear that the question of proximate cause...