Toler v. Hawkins
| Decision Date | 17 September 1940 |
| Docket Number | 29473. |
| Citation | 105 P.2d 1041,188 Okla. 58,1940 OK 370 |
| Parties | TOLER v. HAWKINS. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Oct. 8, 1940.
Syllabus by the Court.
1. A highway contractor doing work in a highway is bound to act reasonably and with due regard for the rights of persons lawfully using the way, and is liable for injuries resulting from his negligence in the performance of the work.
2. The liability of a highway contractor for injury to persons lawfully using the way does not depend on contract, but arises out of a legal duty devolving upon him, as well as the public in general, not to obstruct or make the highway dangerous for ordinary use under the circumstances. Such a duty being to the public generally may be enforced by any one if damages occur on account of the failure to perform that duty.
3. It is not negligence, as a matter of law, for a person to drive upon a dangerous or defective highway, knowing it to be such unless the dangerous or defective condition is such that a person of ordinary prudence would not attempt to drive over it; but knowledge of the dangerous condition of a highway imposes a duty upon the traveler to exercise such care as the circumstances demand.
Appeal from District Court, Creek County; C. O. Beaver, Judge.
Action by Lillian Hawkins against George G. Toler for injuries sustained while riding in an automobile on a highway which defendant was repairing. From a judgment for plaintiff defendant appeals.
Affirmed.
N. A Gibson and Wilbur J. Holleman, both of Tulsa, for plaintiff in error.
Speakman & Speakman, of Sapulpa, for defendant in error.
The defendant in error, Lillian Hawkins, plaintiff below, recovered a verdict and judgment against the plaintiff in error, George G. Toler, defendant below, in an action for damages for personal injuries, from which judgment the defendant appealed. For convenience the parties will be referred to herein as designated in the trial court.
The defendant, a contractor, was constructing an overpass on the public highway over and across railroad tracks just north of the town of Mounds, and a strip of paving about four-tenths of a mile approaching same. As a part of his contract he was to break up the old concrete slab on this section of the highway and remove the same preparatory to the construction of new paving. Under the direction of the Highway Commission the work was accomplished in such manner as not to require the closing of the road to traffic. This was done by clearing one side of the road at a time while the other side was left open to travel. The Highway Commission placed a flagman at each end of the stretch under construction to regulate the traffic so as to permit only one-way travel at a time over that part of the road left open. The plaintiff and her son were passengers in a one-seated car driven by her husband, and as they approached, the flagman halted the car and warned the driver that the road was under construction ahead. In breaking up the old paving a large segment or chunk of pavement was removed from the side left open to travel, thereby leaving an open hole, and the wheels of vehicles passing over the breach pounded the hole deeper and deeper until it became impassable and hazardous to travel. The car in which the plaintiff was riding proceeded over this portion of the road, and while traveling at a speed of about ten miles per hour one of the front wheels of the car dropped into the hole, bringing the vehicle to an abrupt stop and throwing the plaintiff against the cowl of the car and causing the injuries complained of.
The defendant contends that since the contract imposed upon him no duty to maintain a detour, and that the Highway Department kept the road open to travel and placed guards at both ends of the broken pavement to warn the traveling public of the danger,...
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