Tex. Co. v. Robb
| Decision Date | 23 January 1923 |
| Docket Number | Case Number: 10809 |
| Citation | 1923 OK 43,88 Okla. 150,212 P. 318 |
| Parties | TEXAS COMPANY v. ROBB. |
| Court | Oklahoma Supreme Court |
¶0 1. Negligence--Question for Jury.
Where from the facts shown by the evidence, although undisputed, reasonable men might draw different conclusions respecting the question of negligence, such question is properly for the jury, and it is only where the facts are such that all reasonable men must draw the same conclusions from them that the question of negligence is ever considered as one of law for the court.
2. Negligence--Elements of Actionable Negligence.
The three constituent elements of actionable negligence are: (1) The existence of a duty on the part of the person complained against to protect the complainant from the injury of which he complains; (2) the failure of the defendant to perform that duty; (3) and the injury to the plaintiff resulting from such failure of the defendant.
3. Adjoining Landowners--Dangerous Premises--Care Required.
A person owes to an adjoining property owner the duty to take such precaution and use such means to lessen the danger to the adjoining property as a man of ordinary prudence, conversant with the business, understanding its operation and the danger to adjoining property incident thereto, would have used or adopted for the purpose of preventing loss or injury to surrounding property.
4. Negligence--Dangerous Instrumentalities --"Due Care."
Reasonable care admits increased watchfulness and greater caution in proportion to the dangerous nature of the instrumentality employed, that is, due care means care which is reasonably commensurate with a known danger and the seriousness of the consequences which are liable to follow its omission.
5. Oil and Gas -- Damages to Adjoining Property from Burning Tank--Negligence--Evidence.
Evidence examined, and held sufficient to be submitted to the jury upon proper instructions.
6. Same--Instructions.
Instructions examined, and held to fairly submit the issues to the jury.
7. Negligence--Act of God -- Concurrent Negligence--Liability.
An act of God which will excuse from liability must not only be the proximate cause of the loss, but it must be the sole cause. If, however, the injury is caused by an act of God commingled with the negligence of the defendant as an efficient and contributing concurrent cause, and the injury would not have occurred except for such negligence, the defendant will be liable.
Error from District Court, Payne County; John P. Hickam, Judge.
Action by C. J. Robb against the Texas Company for damages. Judgment for plaintiff, and defendant brings error. Affirmed.
John R. Ramsay, B. W. Griffith, and Sol. H. Kauffman, for plaintiff in error.
J. M. Springer and E. G. Wilson, for defendant in error.
¶1 This action was commenced in the district court of Payne county, Okla., against the Texas Company for damages to property of the plaintiff caused by the escape of oil from one of the tanks located on the defendant's tank farm, and also damages caused by the heat from the burning oil. Judgment was rendered for the plaintiff for $ 500, and defendant has prosecuted this appeal.
¶2 The defendant contends that there was no showing of primary negligence, hence a verdict should have been directed for the defendant. A large part of the argument of the defendant on this proposition consists of a discussion of the doctrine set out in the case of Rylander v. Fletcher, Eng. Rul. Cas., vol. 1, p. 236, in which it is held:
"That one who for his own purpose brings on his own land an artificial substance and collects and keeps it there, anything that is likely to do mischief if it escape, must keep it at his own peril."
¶3 It is not necessary for this court to determine how that doctrine will be applied in the proper case. The courts of this country, which have followed the above doctrine, have, as a rule, done so in cases where the article collected, or the business conducted, by reason of its peculiar character, created a nuisance, and they have held in such cases that the question was not one of injury for negligence, but consequential damages from a nuisance.
¶4 In the case at bar the trial court instructed the jury that negligence on the part of the defendant must be shown in order to entitle plaintiff to recover, and, inasmuch as this theory was favorable to the plaintiff in error, it is not now necessary to determine whether the storage of large quantities of crude oil in the manner described in the record created a nuisance. We shall, therefore, examine the record to ascertain whether there was a sufficient showing of primary negligence to entitle the case to go to the jury. This court has several times stated the rule as follows:
"Where from the facts shown by the evidence, although undisputed, reasonable men might draw different conclusions respecting the question of negligence or contributory negligence, such questions are properly for the jury, and it is only where the facts are such that all reasonable men must draw the same conclusions from them that the question of negligence is ever considered as one of law for the court." Town of Watonga v. Morrison, 78 Okla. 74, 189 P. 737; Dickinson v. Granbery, 71 Okla. 9, 174 P. 776; Dickinson v. Whitaker, 75 Okla. 243, 182 P. 901.
¶5 In the case of Town of Watonga v. Morrison, supra, the court states the three constituent elements of actionable negligence to be:
"The existence of a duty on the part of the person complained against to protect the complainant from the injury of which he complains; the failure of the defendant to perform that duty; and the injury to the plaintiff resulting from such failure of the defendant."
¶6 The pleadings in this case presented the question of damage caused by the careless and negligent erection and construction of oil tanks, in that defendant, knowing the inflammable condition and nature of the oil stored in said oil tanks, erected tanks of 60,000 barrels capacity in close proximity to the improvements on the plaintiff's property, and the negligence of the defendant in allowing the oil to escape from one of the tanks on to the property of the defendant, which was adjacent to the property of the plaintiff. Conceding, without deciding, that the oil stored in the manner shown in the record in this case was not a nuisance, the duty of the defendant in constructing and operating the tank farm was to take such precaution and use such means to lessen the danger to adjoining property as a man of ordinary prudence, conversant with the business, understanding its operation and the danger to adjoining property incident thereto, would have used or adopted for the purpose of preventing loss...
To continue reading
Request your trial