(dissenting).
I am unable to concur in the majority opinion on the merits.
The basic question on the merits is whether under all the facts the jury was entitled to conclude that the Oklahoma Turnpike Authority, hereafter referred to as “Authority”, failed to exercise ordinary and reasonable care in permitting Barbara Reno, hereafter referred to as “driver” to come upon the Turner Turnpike, hereafter referred to as “turnpike”, and/or to use said turnpike after being admitted thereto.
Driver and her two male companions applied for permission to use the turnpike at one of the entrances thereto near Chandler, Oklahoma. The agent for turnpike who issued driver a “ticket” which evidenced driver’s privilege to use the turnpike, testified that one of driver’s male companions who was seated in the front seat of the automobile next to driver “was sitting there and spoke no words”; and that the other male companion was “laying down in the back” and that he didn’t know whether he was conscious or unconscious. The agent testified further that driver stated that a filling-station operator had told her to stay off the turnpike and that driver told the agent “I found it any way”.
Was the jury justified in finding that the foregoing facts were sufficient to place Authority on notice that driver and her male companions were probably under the influence of liquor or drugs and that driver’s operation of the automobile upon the turnpike would probably endanger the lives, limbs and property of those using said turnpike, or did it put Authority on notice that while driver could possibly operate the automobile well enough at the time she entered upon the turnpike, she and her companions should be kept under surveillance in order to learn if the silent man might suddenly come to life and become very interested in those around him, or the reclining man who was possibly unconscious might suddenly become conscious and otherwise physically active, or if driver who experienced trouble in locating the turnpike might experience trouble in properly driving the automobile down it once she gained entrance thereto? I submit that this question must be answered in the affirmative.
Over a period of some two hours following driver’s admission to the turnpike, these things occurred while driver and her companions traveled approximately 47 miles:
Plaintiff testified that driver passed his automobile so close that he pulled over to avoid being side swiped; that driver cut in front of his automobile immediately *1090upon passing and he thought that driver would smash his left front fender; that a hat from a man occupying driver’s automobile blew off and driver didn’t stop so that the hat could be retrieved; that driver’s car later struck defendant-in-error’s automobile from the rear at a time when plaintiff was driving 60 miles an hour. A witness testified that driver passed his automobile at a high rate of speed, then slowed down and after he passed driver’s automobile, driver passed witness’s automobile going fast and she was “laying right on the horn all the time that she was going around him”; that a man was slouched down in the back seat; that driver was “driving wide open”, that the next time he saw driver she was stopped along turnpike; that he then “sped up and tried to hold the speed limit as best he could to get away from driver”; that his boys watched driver’s automobile through field glasses; that he witnessed driver’s automobile collide with plaintiff’s automobile; that witness thought driver was going to hit the “boulevard” when she went around him; that she was “laying on the horn and she was laughing” and he thought “something was wrong because (driver) drove so fast”; that witness saw driver parked and one of the doors of her automobile was- open. Another witness testified that he saw driver’s automobile in a ditch; that driver passed his automobile several times; saw a person drinking out of a bottle “that looked like a whiskey bottle”; that he saw “them” drink as they drove; that the man in the front seat had a bottle; that driver and the man in the front seat took a drink; that “they were dangerous to the highway and everybody”; that driver drove very close to his automobile. Another witness testified that he saw driver “kinda parked in the ditch”; that he saw “them” drinking. Another witness testified that because of the manner in which driver operated her automobile he watched it through binoculars; that driver was driving at a high rate of speed. Another witness testified that after observing driver’s antics she “drove about 70 from then on trying to get away from her because I didn’t want to encounter her any more”. The witnesses who saw driver on the turnpike were in accord on the proposition that driver drove her automobile in a wantonly reckless manner.
Was the jury justified in finding, as it no doubt did, that driver and her companions were under the influence of intoxicants or drugs and that their presence upon turnpike jeopardized the lives, limbs and property of others using turnpike? I submit that this question must also be answered in the affirmative.
I am of the opinion that Authority is charged with the duty of exercising ordinary or reasonable care in screening its prospective patrons and in not admitting to turnpike a person who, because of intoxication, mental derangement or an openly-manifested disregard of the right of others may possibly endanger the lives, limbs and property of others using the turnpike and that it is also charged with the exercise of said degree of care in learning of the presence of a patron on or using the turnpike whose condition due to intoxication, mental derangement or an openly-manifested disregard for the rights of others may endanger the lives, limbs and property of others and that the Authority is negligent when it fails to exercise said degree of care.
76 O.S.1951 § 5 reads as follows:
“Every one is responsible, not only for the result of his wilful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, wilfully or by want of ordinary care, brought the injury upon himself.”
In Denco Bus Co. v. Keller, 202 Okl. 263, 212 P.2d 469, 473 this court pointed out that “ ‘ordinary care,’ in law, at least, means the same as ‘due care’ or ‘reasonable care’ ”.
*1091At p. 674, 38 Am.Jur. “Negligence”, the author points out that “both ordinary care and reasonable care means due care”.
Sherman & Redfield have this to say in Vol. 2, Sec. 377, p. 940 of their work on “Negligence”:
“In consideration of the right to collect such tolls, the proprietors of the road undertake to exercise ordinary care and diligence in keeping it in such a state of repair that it may he traveled with safety to life and property.”
Driver’s mental and physical condition both before and after entering upon the turnpike can he shown by circumstantial evidence. In Beatrice Foods Co. v. Jennings, 206 Okl. 688, 690, 246 P.2d 347, 349, this court stated “that negligence may be established by circumstantial evidence and the reasonable inferences to be drawn therefrom, and that where the evidence was such that reasonable men might draw different conclusions therefrom, it was a question for the jury.” Casualty Reciprocal Exchange v. Sutfin, 196 Okl. 567, 166 P.2d 434; Mid-Continent Pipe Line Co. v. Price, 203 Okl. 626, 225 P.2d 176 are cited in support of the quoted statements.
If Authority was under the duty to exercise ordinary and reasonable care to learn of conditions on the turnpike and learn if conditions existing thereon were dangerous and hazardous to its patrons, and I am of the opinion that it was, knowledge of a dangerous and hazardous condition can be imputed to it.
The following will he found at pp. 352-354, 65 C.J.S. Negligence § 5:
“The knowledge or notice of defect or danger which is necessary in order to impose liability for negligence need not be actual, and implied, imputed, or constructive knowledge or notice is sufficient. Negligently remaining ignorant of that which it is one’s duty to know has the same effect as actual knowledge, and in such case one is said to have implied or constructive notice or knowledge, and, where knowledge is necessary to careful conduct, voluntary ignorance is equivalent to negligence.”
“ * * * where a person is under a duty to know of, or to discover, a defect or danger, and could discover it by the exercise of due, ordinary, or reasonable care of diligence, and the condition has existed for a sufficient time to have enabled him to discover it, knowledge or notice thereof is imputed to him as far as the question of his negligence is concerned, or, what amounts to the same thing in practical effect, his failure to discover the defect or danger is regarded as negligence, or will not excuse him from liability.”
At page 365 of the last above-cited authority, the author has this to say:
“What constitutes sufficient time to discover a defect or danger must depend on the circumstances of each case, and a reasonable time is afforded.”
In Galveston, H. & S. A. R. Co. v. Bell, Tex.Civ.App., 165 S.W. 1, 2, affirmed 110 Tex. 104, 216 S.W. 390, the court had this to say:
“It was not necessary that appellant should or could have foreseen the occurrence as it really happened. Tf a drunken and disorderly man is on the carrier’s vehicle, it will not do to say, after a passenger has been subjected to insult or injury, that the carrier’s servants did not know or could not have foreseen that the particular individual who was insulted or injured was in danger of such insult or injury, if they were apprised, or with proper care could have known, of circumstances which indicated that someone would be injured, unless the disorderly passenger or stranger were ejected or controlled.’ ”
It is apparent that the nature of business conducted on property has a direct bearing on whether a proprietor has exercised ordinary or reasonable care in learning of the dangerous tendencies of a person on *1092his property and in taking steps to protect others who are on his property from the acts of said person. In a small roller skating rink a person whose actions indicate a disregard for the rights of others can he quickly and easily detected. In a large stadium detection would not be as easy. On a turnpike it would be more difficult. However, where a person over a two-hour period engages in the antics that driver and her companions engaged in from near Chandler to near Sapulpa, a relatively short distance, the matter of whether Authority used ordinary and reasonable care in learning a driver’s lack of ability to properly operate the automobile that she was attempting to operate and whether it took steps to prevent driver from becoming involved in a traffic accident such as notifying the Department of Public Safety, hereafter referred to as “Highway Patrol” of driver’s action is a question of fact for the jury.
At page 17, 20 A.L.R.2d, the authors of the annotated notes, beginning on said page, introduce said notes with this observation :
“It is well settled that the proprietor of a business establishment owes a duty to his customers and patrons to exercise reasonable, ordinary or due care to keep his premises reasonably safe for their use. This liability includes affirmative acts of negligence and also dangerous conditions which the proprietor could have known of in the exercise of due care. In other words, the proprietor must exercise due care to avoid injuring customers, and take such precautions as a man of ordinary prudence would observe under the circumstances, and must, therefore, maintain the premises in such a way that they will be reasonably safe for customers.”
At page 21, 20 A.L.R.2d of the above-referred to annotated notes the annotator states that:
“The dangerous condition of the premises against which the proprietor of a business establishment has the duty to protect his customers includes the acts of third persons, and, more particularly, the acts of other customers.”
The first paragraph of 69 O.S.1951, § 666, reads as follows:
“Each turnpike project when constructed and opened to traffic shall be maintained and kept in good condition and repair by the Authority. Each such turnpike project shall also be policed and operated by such forces of police, toll-takers and other operating employees as the Authority may in its discretion employ.”
When the last above-quoted language and the language of 69 O.S.Supp. ’53, § 692, to the effect that “Enforcement of both traffic laws and the general laws of the State of Oklahoma on Turnpikes shall be the exclusive responsibility of the Department of Public Safety” are considered, one is forced to the conclusion that the Legislature in effect created a contract between Authority and the Highway Patrol to the effect that the latter should have the primary duty of policing the turnpike. If Authority had directly entered into the contract this would not serve to absolve it from negligence because Authority’s duty to exercise ordinary and reasonable care in its operation of the turnpike is a non-delegable duty.
At p. 42, Sec. 19, Vol. 1, Sherman & Redfield “Negligence”, the authors have this to say:
“One who is personally bound to perform a duty cannot relieve himself from the burden of such obligation by any contract which he may make for its performance by another person.
“Therefore, the fact that he may have used the utmost care in selecting an agent to perform this duty, or that he has entered into a contract with any person by which the latter undertakes to perform the duty, is no excuse to the person upon whom the obligation originally rested, in case of failure of performance. His obliga*1093tion is to do the thing, not merely to employ another to do it.”
In Dagley v. National Cloak & Suit Co., 224 Mo.App. 61, 22 S.W.2d 892, 895, a Kansas City Court of Appeals has this to say:
“We fully agree that the advertising company was an independent contractor. But a storekeeper may not relieve himself of the duty to use reasonable care to keep his premises in a reasonably safe condition for the use of his invited customers and his prospective customers by contracting with others and relying upon them to take the necessary precautionary measures. 45 C.J. 880; Pooler v. Sargent Lumber Co., 113 Me. 426, 94 A. 754, L.R.A.1915F, 1125; Golson v. W. F. Covington Mfg. Co., 205 Ala. 226, 87 So. 439; Pitcher v. Lennon, 12 App.Div. 356, 42 N.Y.S. 156; Coeur d'Alene Lumber Co. v. Thompson, 9 Cir., 215 F. 8, L.R.A.1915A, 731.”
Any suggestion that Authority should not be treated the same as any other tort feasor and therefore without right to delegate its duty to exercise ordinary and reasonable care in policing turnpike is, in my opinion, dispelled by the provisions of 69 O.S.1951 § 653 to the effect that the fact that Authority is declared to be a state instrumentality “shall not be construed to relieve said Authority from liability for personal injuries or property damages incurred by it through its negligence or the negligence of its servants or agents, and in addition thereto it shall be subject to Workmen’s Compensation Laws of the State the same as a private construction project.” It is patent that if Authority in the instant case is permitted to delegate its duty to exercise ordinary care, it is not made responsible for its negligence, and the language of Sec. 653 is in part struck down.
If it be assumed that the Highway Patrol had exclusive authority to police turnpike, this would not render Authority free of negligence if it permitted a person who was not normal as a result of intoxication or other causes, whether the causes be natural or unnatural to enter upon the turnpike, because Sec. 692, supra, only applies to the turnpike proper and not to its approaches. In brief, turnpike’s agents and not the members of the Highway Patrol issue tickets and admit persons to the turnpike. In my opinion, the provisions of Sec. 692, supra, would not relieve Authority from notifying the Highway Patrol of dangerous and hazardous conditions upon the highway brought about by a person using same. It is a matter of common knowledge that a proprietor of an establishment usually calls upon peace officers to control an unruly patron instead of undertaking to control the patron himself, and the jury in the instant case probably thought that Authority should, in the exercise of ordinary and reasonable care,' have taken this step.
It is the public policy of this State to maintain order and protect lives, limbs and property, which policy is in part developed by the provisions of Title 22 O.S.1951 §§ 187, 202 and 204 under which a private person is authorized to make arrests and if the person sought to be arrested has committed a felony, a private person may break open an outer or inner door or window of a dwelling house for the purpose of making an arrest. See also by Title 21 O.S.1951 Sec. 537, a private person, following an officer’s request for assistance, is guilty of a misdemeanor if he fails to assist an officer in making an arrest.
I am of the opinion that the Legislature, in enacting the Turnpike Authority Act, did not intend to change the public policy of this State as applied to turnpikes over which automobiles travel at 70 or more miles per hour, and that the Legislature, to the contrary, intended that law and order be maintained on turnpikes through the cooperation of the agents of the Authority, private persons, peace officers and Highway Patrol. I am of the further opinion that the Legislature’s intent in enacting the statute relied upon by the plaintiff *1094in error was to make available to Authority (at Authority’s cost) the trained personnel of the Highway Patrol. It is provided in Sec. 666, quoted supra, that Authority shall be “operated by such force of police * * * as the Authority may in its discretion employ.” This language makes clear that the number of Highway Patrolmen used in policing the turnpike rests in the discretion of Authority and not in the Highway Patrol. Therefore, if the damage sustained by defendant in error resulted - directly from an insufficient number of Highway Patrolmen being available on the turnpike at the time the accident occurred, this is chargeable to Authority and not the Highway Patrol.
The legislative plan to make the services of the Highway Patrol available to Authority is comparable to the plan created by ordinances of making trained policemen available to control traffic and perform other police work in the city enacting the ordinance, and is also comparable to the legislative plan (19 O.S. 19S1 § 516), under which sheriffs are charged with the duty of preserving peace and order in their respective counties.
To my knowledge no one has ever seriously suggested that the fact that peace officers, which would, of course, include Highway Patrolmen, are specifically charged with the duty of controlling traffic and performing other necessary police work, absolves a private proprietor of the duty of exercising ordinary and reasonable care in protecting his patrons from the acts of another patron where the proprietor knows or under the facts is charged with knowledge, that protection should be extended, and no reason appears to me why in the instant case Authority should be permitted to, in effect, successfully assert that if any entity was negligent in not properly policing turnpike it was the Highway Patrol and not it.
For the reason herein stated, I respectfully dissent.
I am authorized to state that BLACKBIRD, J., concurs in the foregoing views.