City of Oklahoma City v. Baker

BAYLESS, J., The city of Oklahoma City appeal^ from a judgment, based on the verdict of a jury, in favor of Evelyne Baker. Baker sued for damages suffered from injuries received when an automobile in which she was.riding ran into a water drain on the southwest corner of the intersection of Pennsylvania avenue and 38th street in Oklahoma City. She alleged that the city was negligent in failing to observe the duty it owed to the users of said streets to keep said streets safe. In its brief here city does not debate the issue of fact whether the particular place was safe within the meaning of that term as applied to the users thereof; and makes its argument upon the rule of law that even if it was negligent in that respect, its negligence was not the proximate cause of the injury, but the injury was primarily and proximately caused by the intervening, independent act of a third party, to wit, the driver of the automobile. There is very little conflict in the evidence. 38th and 39th streets run east and west, while Pennsylvania avenue runs north and south and ends as it intersects 38th street. 38th street is a graded, dirt road. Pennsylvania avenue is paved, the slab being 36 feet wide. Along the south side of 38th street, and on the east and west sides of Pennsylvania avenue, is a water drain, or drainage ditch that passes under Pennsylvania, or the intersection of the two streets, through a culvert. The west ditch as it enters the culvert is involved, so we direct our attention to it. The various witnesses testified that this ditch, where the car dropped into it, was three or four feet deep. We take the following data from Baker’s exhibit 7. The paving ends before the two streets intersect and Pennsylvania avenue from the end of the paving northwards into the intersection is also a graded dirt road. There are about 15 feet of this dirt road from the end of the pavement to an imaginary line drawn east and west across *240 Pennsylvania avenue from the south end of the ditch, and about 20 feet from that line to the approximate south line of 38th street. The dirt road is about 22 feet wide where it begins at the end of the paving, it gradually narrows some until it reaches the aforementioned imaginary line, at which point dt is about 19% feet wide, and thereafter it gradually broadens until it is absorbed into the intersection. All of these dimensions are borne out by the photographs. The witnesses disagree about the number and type of warning signs. It is not disputed that a sign on the north side of 38 th street warned travelers of the end of Pennsylvania avenue. All of this evidence relates to traffic signs for north-bound traffic. It is admitted by all that between 37th street and this intersection there are some warning signs, but their location and whether “stop” or “slow” warnings are in dispute. It is not contended that there is a rail or barrier around this ditch or that there is a warning sign on its side warning travelers approaching from the south of its existence. The undisputed evidence of the plaintiff and her witnesses is that this accident happened about 11 o’clock or a little later .in the night, while they were going north on Pennsylvania avenue with the intention of getting to 39th street. They all agree it was cold, rainy, snowy, and bad driving conditions prevailed. The driver testified that when he started north on Pennsylvania avenue he believed it was a through street, but observed signs about 40 yards south of the intersection warning him otherwise, and that he approached the intersection with this knowledge and with the intent to turn left or to the west. He testified he did not see this ditch and did not see any warning signs of its existence. Addressing ourselves to the law applicable, we begin by observing that the parties do not differ about the fundamental duty owed by city to plaintiff, but they do differ materially with respect to the application of the fundamental rule to these facts. The general rule is that a municipal corporation must exercise ordinary care to keep its streets in a reasonably safe condition for ordinary use by the public. City of Picher v. Barrett, 120 Okla. 66, 249 P. 739, and the earlier decisions cited therein; City of Seminole v. Mooring, 185 Okla. 359, 91 P. 2d 1091, and-the decisions and authorities cited therein. It is to be observed that it is ordinary use by the public that is protected. Ordinary use by the public is that use which conforms to ordinary care and prudence on the part of the users for their own protection, and as it is further governed by specific laws regulating use. In other words, a municipal corporation is not required to keep its streets in a condition that protects the users from a use that is not ordinary. A municipality is not obliged to respond in damages for injuries that occur to users of its streets when the use from which the injury arose is one not to be expected. Cyc. of Auto. Law and Prac., Blashfield (Perm. Ed.) sections 2552, 2592, 3192 and 3341. The rule contended for by city that a person who suffers a condition to exist that is a violation of its duty is not liable for an injury suffered therefrom where the act of an independent person has intervened is limited by a factor that ties into the notion of ordinary use above stated. If the intervening act of the independent person is one that reasonably might have been expected or anticipated, in the jrdinary course of events, then the negligence involved in the breach of duty represented by the existing condition is regarded as a proximate cause and liability follows. Otherwise, not. Our decision in Oklahoma Nat. Gas Co. v. Courtney, 182 Okla. 582, 79 P. 2d 235, illustrates this point. The rule stated in syllabus 3 of that opinion explains clearly where the original wrongful act is the proximate cause notwithstanding an intervening agency: “Where there is an intervening, responsible agency, which directly produces the injury, as in this case, the *241 question as to whether the original negligence is to be regarded as the proximate cause of the injury, or only as a condition, or remote cause, is to lie determined by ascertaining whether the agency which intervened was of such a character, and the circumstances under which it occurred were such, that it might have been reasonably expected that such agency or a similar one would intervene in such a way as to be likely to produce an injury similar to the one actually caused. If, under the circumstances, the intervention of such an agency in the manner stated might reasonably have been expected in the usual course of events, and according to common experience, then the chain of causation, extending from the original wrongful act to the injury, is not broken by the independent, intervening agency, and the original wrongful act will be treated as the proximate cause.” If a given situation tits within this rule, liability attaches, whereas if it falls without it, no liability ensues. The ordinances of the city governing the use of streets and turning on intersections oblige the drivers of automobiles to keep to the right side of the road, and in turning into an intersection the driver must keep to the right of the center thereof. If he had done this, he would not have driven into a ditch at the southwest corner of the intersection. In the absence of such an ordinance, ordinary care and prudence would have dictated that he use the street and intersection in a similar manner to that prescribed in the ordinance. Thus his act of driving on the left side of the road and in turning into the ditch in the southwest corner of the intersection, driving from the south to the north as he was, was the act that caused the injury. Conceding the existence of the negligent condition, this act of the driver’s was one not to be expected from the ordinary use of the road. Millstead v. City of New Orleans (La. App.) 146 So. 492, and Rodkey v. City of Escondido, 8 Cal. 2d 685, 67 P. 2d 1053. The negligence of the city not being the proximate cause of the injury to plaintiff, but said injury coming from the intervening act of an independent third person, no liability exists on the part of the city for the damages suffered by plaintiff. The judgment appealed from is reversed and the cause is remanded for further proceedings not inconsistent with the views herein expressed. CORN, C. J., GIBSON, V. C. J., and RILEY and WELCH, JJ., concur. OSBORN, HURST, DAVISON, ,and ARNOLD, JJ., dissent.