In conformity with and in support of her allegations the plaintiff introduced evidence reasonably tending to support the finding of the jury that her injuries were proximately occasioned by the negligence of the defendant city. The evidence introduced by her and the reasonable inferences to be drawn therefrom reasonably tend to show that Pennsylvania avenue runs north, is paved and dead-ends at the north line of 38th street. Some distance south of the intersection of Pennsylania avenue and 38th street the pavement ends and the traveled position of Pennsylvania avenue couverges considerably before the interesction is reached; extending along the south side of 38th street, eastward and westward, from the point where Pennsylvania avenue and 38th street intersect, there is a drainage ditch for the purpose of carrying off surface water; a culvert under Pennsylvania avenue makes the ditch continuous; there is a large hole or depression at each end of the culvert; the hole or excavation at the west end of the culvert or southwest corner of the intersection has eroded and extended several feet into the intersection and the surface of the ground slopes toward the hole; because of the drainage ditch on the north side of 38th street, the convergence of the traveled portion of Pennsylvania avenue and 38th street and the drainage ditch on the south side of 38th and the erosion at the ends of the culvert across Pennsylvania at the point located, it was impossible to make a left-hand turn in the intersection around the center of the intersection and there *Page 242 was no violation of the ordinance pleaded and proved; that the driver of the car in which plaintiff was riding as a guest did not attempt to go around the center of the intersection, but upon sudden notice of the dead-end sign in the middle of Pennsylvania avenue, if extended north of 38th street, turned westward upon entering the intersection, encountered the sloping area of the intersection and the eroded portion of the street leading to the hole or excavation at the end of the culvert and his car skidded into the excavation; that no other signs of warning were near the intersection and there were no barricades around the hole; that these conditions had existed for a long time and the city had knowledge thereof or with the exercise of ordinary diligence would have been apprised of the situation; that the weather was inclement and the ground slippery throughout the intersection; that such an occurrence was reasonably to be expected under all the circumstances prevailing.
The city constructed the street and the drainage ditches and therefore created the general physical situation existing at the intersection of the streets involved. It was its duty to maintain the streets in a reasonably safe condition and protect the traveling public against the unusual hazards thereof by proper barricades or signals. Whether a municipality has been negligent in either regard is ordinarily a question for the jury where there is any testimony reasonably tending to show failure to perform either duty imposed. The city admits its knowledge of the general physical situation and that it had maintained for a long time. It does not question the soundness of the foregoing stated duties. It contends only that there was no proximate relationship of the negligence alleged and the injuries complained of, and that the trial court erred in refusing its proffered instruction on contributory negligence.
The city did not plead nor does it contend that the negligence, if any, of plaintiff's driver was her negligence; if he were negligent and his negligence concurred with the negligence of the city, his concurring negligence would in no wise excuse the city.
The jury in this case and the trial judge no doubt concluded that the physical situation existing at the intersection and the absence of proper warning signals caused the driver of the car in which plaintiff was riding to make the turn that he attempted in the manner described by him and his car was caused to skid into the excavation by reason of the eroded and sloping condition of the surface of the intersection. Surely this is a reasonable conclusion if the testimony of plaintiff's witnesses was believed by the jury.
Proximate cause being governed by the same rule as the existence of the negligence alleged and relied upon, the issue was properly submitted to the jury; there being some testimony reasonably tending to support the jury's determination that there was proximate relationship, the verdict and judgment should be sustained.
The cases cited by the defendant city present very different fact situations in my judgment. They present generally situations wherein an independent intervening cause was wholly to blame for the occurrence which resulted in injury and the accident would have occurred even though the defendant had not been negligent.
In the cited cases we held that the negligence alleged did not cause or contribute to the actual cause of the accident. Not so here. The city's alleged negligence as hereinbefore demonstrated was reasonably determined by the jury to have caused the driver's car to skid into the large hole at the end of the culvert. If this be true, there can be no doubt of the proximate relationship of plaintiff's injuries and the negligence of the city.
There was no evidence of contributory negligence on the part of the plaintiff, so under our rule announced first in Miller v. Price, 168 Okla. 452, 33 P.2d 624, and since consistently *Page 243 followed by us — though the author doubts the soundness of the rule — the trial court correctly refused the proffered instruction on contributory negligence. The city concedes the soundness of the rule of the Miller Case, supra, but only contends in this connection that the rule is inapplicable in this case for the reason there was evidence sufficient to raise the issue.
In view of the evidence in this case the effect of the opinion of the majority amounts to a determination by us of the weight to be given the facts, circumstances, and reasonable inferences to be given the testimony. Such an invasion of the province of the jury is, in my judgment, very dangerous. I therefore respectfully dissent.
HURST, J., concurs.