Transport Indemnity Company v. Page , 406 P.2d 980 ( 1965 )

BERRY, Justice.

The parties appear here as they appeared in the trial court. The defendant Transcon Freight Lines will be referred to as Trans-con, which reference will include the defendant Transport Indemnity Co., and defendant William Eugene Hall will he referred to as Hall.

This is an appeal from a judgment rendered upon a jury verdict in favor of plaintiff, administratrix of the estate of Burl Page, deceased. The action was brought for damages for wrongful death, conscious pain and suffering, and medical expenses alleged to have resulted from a collision between deceased’s automobile and a truck-trailer transport operated by defendant William Eugene Hall.

Plaintiff’s cause of action is predicated upon the alleged joint and concurrent negligence of defendant William Eugene Hall and J. C. Rooker, the driver of the Transcon transport truck.

A full understanding of the physical surroundings and circumstances connected with the accident is disclosed by the following statement. About 7:30 a. m. on the morning of November 20, 1961 deceased, Burl Page, was driving his automobile west on U. S. Highway 64 some two miles west of Web-bers Falls enroute to work. Rooker, an admitted agent and employee of Transcon was traveling east in a white freight-liner with a van trailer which we shall, for convenience, refer to as truck #1. Following behind Rooker was a loaded Mack truck and open trailer referred to as truck #2, fifty feet long, seven and one half feet wide, weighing 56,000 pounds and driven by John Henry. Traveling behind the Henry truck was a Mack truck and trailer forty-eight feet long with a laden weight of 55.000 pounds driven by defendant Hall, here designated as truck #3. The weather was cloudy and cold but the highway was dry.

Just before the accident, Henry in truck #2 was maintaining a distance of two truck lengths or about one hundred feet behind the Transcon truck or truck #1; and defendant Hall in truck #3 was approximately the same distance behind the Henry truck. The trucks had been traveling about 45 miles per hour, although trucks #2 and #3 had been gaining on truck #1 shortly before the accident. Near the point of the accident, Highway 64 crosses Dirty Creek over a bridge approximately 18 feet wide and protected by a “narrow bridge” sign located' about 300 to 400 ft. west. When within about 500 or 600 feet west of the bridge, Rooker, driver of truck #1, observed an automobile driven by Page approaching around a curve some 500 to 600 feet east of the bridge. Although the evidence is conflicting, the jury must have found truck #1 slowed as it approached the bridge, and1 when about 100 feet from the bridge, applied his brakes and brought the truck to a stop only a few feet from the bridge and blocked the east-bound traffic lane. The driver of truck #2, following behind truck #1, saw the brake lights flash and applied! his brakes and was able to stop in the rear of the first truck. Upon observing truck #2’s brake lights, defendant Hall, in truck #3, applied his brakes but was unable to stop; and to avoid striking truck #2 he-turned his truck to the left and directly into the path of decedent’s oncoming westbound automobile. Page’s car was struck “nearly head-on” and knocked into the-guard rail on the north side of the highway.. Truck #3 continued eastward along the wrong traffic lane and into Dirty Creek.. As a result of this collision, Page suffered severe injuries which caused his death 7 days later.

The evidence was sharply conflicting in' many material respects. The jury returned a verdict for plaintiff and against all of the defendants, same being trucks #1 and! #3. After motions for new trial were: overruled by the trial court, each defendant appealed.

This appeal presents a matter of legal cognizance, and in such cases the verdict of the jury is deemed to include specific findings in favor of the prevailing party upon every issue of the facts, and this Court will not disturb such findings unless there is absence of evidence in the record reasonably tending to support same. In Syllabus 3 of East Basin Oil & Uranium Co. v. R. L. Pound, etc., Okl., 321 P.2d 694, we said:

“Where in an action of law there is conflict in the evidence, and verdict in favor of plaintiff is approved by the trial court, this court cannot weigh the evidence and reverse the judgment because the evidence on which the verdict was founded was contradicted by other evidence at the trial.”

See also Burke v. Scott, Okl., 361 P.2d 272, and cases cited therein.

Thus, the evidence before us is to be viewed in the light most favorable to the plaintiff, and conflicting evidence favorable to defendants merits only incidental reference in considering the issues determinative of this appeal.

Defendant Hall, in truck #3, for reversal, urges two propositions, to-wit: First, that the evidence is insufficient to sustain the judgment in favor of the plaintiff; and Second, excessive damages which appear to have been given under the influence of passion and prejudice.

Plaintiff’s petition charged defendant Hall with negligence in: (1) failing to drive to the right of center of the highway in violation of 47 O.S.1951 § 121.4(b) which requires that “each driver shall keep to the right of the center of the roadways.” (2) violation of 47 O.S.1951 § 121.3(a) which provides: “Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than, nor less than is reasonable and proper, having due regard to the traffic, surface and -width of the highway and any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead; * *

Defendant Hall argues in support of his first contention that he was confronted with a sudden emergency which caused him to pull his vehicle to the left to avoid colliding with truck #2, in front and thereby collided with deceased’s automobile. He argues that in the face of an emergency he acted as a reasonable and prudent man under the circumstances, and that not having time to react properly or think of the consequences, he cannot be charged with negligence.

The evidence relative to the circumstances existing just prior to and at the time of the collision does not sustain defendant’s claim of a sudden emergency. Defendant knew the size and weight of his own vehicle and he knew that he was following behind two large trucks. The evidence is undisputed that trucks #2 and #3 were traveling in consort by previous plan. It is further clear they had been maintaining a speed in excess of the statutory limit for trucks of this weight. It is further undisputed that truck #3 was not maintaining the required distance of 300-feet separation between his vehicle and truck #2. It is conceded that just prior to the collision, truck #2, immediately ahead, obstructed truck #3’s view so that he could only see the back of truck #2 and could not see the bridge or the decedent Page’s approaching car. The evidence is that when truck #2 applied his brakes and activated his rear signal lamps, truck #3, by virtue of his own acts, i. e., following two closely, failing to maintain a proper lookout and failing to maintain a proper speed, each being a violation of a statute then in effect, had placed himself in a position where he could not stop within the assured clear distance ahead. The slowing of the trucks ahead furnished warning of changed or unusual traffic conditions on the highway ahead and the “narrow bridge” sign ahead, which, under the evidence, truck #3 failed to observe, were sufficient to indicate to a prudent driver of a large vehicle that care and caution were required. Under the evidence as adduced, measured by Title 47 O.S.Supp. 1959 §§ 121.3(f), 121.4(c) and 121.3(a), defendant Hall’s (truck #3) contentions are without merit and the verdict is amply supported by the evidence as to him.

Defendant Hall, in his second contention, avers that the size of the verdict is so excessive under the testimony that it is obvious that the jury was actuated by passion and prejudice as against this defendant. The cases cited by defendant do not, to our minds, support his view. The uncontro-verted evidence showed that deceased was 40 years old, earned $6,000.00 per year, and as a Civil Service employee could reasonably expect to earn in excess of $161,000.00 during his remaining life without consideration of normal periodic increments. It is settled that whether a verdict for damages for personal injury is excessive depends on the particular case.

There is neither evidence nor argument that anything which occurred during the trial of this case establishes bias, passion or prejudice of the jury which is reflected in the verdict rendered. The trial court did not consider the verdict excessive but approved it. The amount of the verdict was well within the evidence. In such a case it is not within the province of this Court to substitute its own judgment for that of the jury. See Tulsa City Lines, Inc. et al. v. Geiger, Okl., 275 P.2d 325, and case cited therein.

We come now to the contention of the defendant Transcon in truck #1. We shall first dispose of the contention urged by it of newly-discovered evidence as one of the grounds for new trial. Briefly stated, defendant alleges false swearing amounting to perjury by the principal witness for plaintiff, the driver of truck #2. In view of our holding in this case, we do not deem it necessary to consider the sufficiency of this ground for reversal.

As grounds of negligence against truck #1, the petition alleges:

1. “ * * * suddenly without previous signal or warning brought his truck to an abrupt stop.

2. “* * * were negligent in abruptly stopping their truck and blocking the highway.

3. “ * * * violating Title 47 O.S. 121.3(a)” providing for reasonable and proper speed.

4. “ * * * negligent in violating Title 47 O.S. 121.5(d) (1)” in not giving signal continuously for the last 100 feet.

5. * * * “negligent in violating Title 47 O.S. 121.5(d) (2)” In stopping without appropriate signal.

6. * * * “negligent in bringing their truck to an abrupt halt.

7. * * * “failed to use due care for the safety of other persons *

and that this negligence coupled with the joint and concurrent negligence of truck #3 was the proximate and direct or contributing cause of the accident.

The test to be applied is as stated in Syllabus No. 1 of Cities Service Oil Company et al. v. Merritt, Okl., 332 P.2d 677:

“This court will review a verdict founded upon conflicting evidence only for the purpose of determining whether or not it is supported by competent evidence and is not contrary to law and not for the purpose of determining the weight of the evidence; and evidence reasonably tending to prove the essential facts in the case, either directly or indirectly or by permissible inferences, is sufficient to sustain the verdict and judgment based thereon.”

With this in mind, we briefly review the evidence.

It is uncontradicted that a signal was given by truck #1 when he was some distance from the bridge. Sec. 121.5 of Title 47 O.S.1951, the statute in effect at the time, provided that the signals required by statute could be given by signal lamp. It is conceded that these lamps were working and that the signal was given in ample time for truck #2 to bring his vehicle to a stop behind truck #1. To our minds, this eliminates from further consideration Grounds 1 and S. Since the signal was given, there was no negligence, per se, in stopping truck #1. This is conclusively demonstrated by the fact that truck #2 was able to come to a stop behind truck #1 in the time and within the distance available to him. This disposes of Ground 2. The third Ground alleged is improper speed. At the time of this accident the statute in effect, found in 47 O.S.19S1 § 121.-3(f) provided that a truck weighing less than 48,000 lbs. was limited to 50 miles per hour. The undisputed evidence in the record shows that truck #1 weighed approximately 35,000 lbs. and trucks #2 and #3 weighed approximately 55,000 lbs. each; therefore, under the statute, supra, the speed limits for these vehicles varied. The evidence shows that all three were traveling from 40 to 45 miles per hour prior to the accident and that trucks #2 and #3 were slowly overtaking truck #1. Truck #1 was not, under the evidence, violating the speed limit. This eliminates Ground No. 3.

Groitnd No. 4 states that the signal was not given continuously for the last 100 feet. The only witness in a position to observe the stop lights on truck #1 was plaintiff’s witness, driver of truck #2. He testified:

“Q. How long was it — how far did your truck travel from the time you applied your brakes until the time you stopped?

“A. Well, that is something else. I cannot answer truthfully.

“Q. Can you give me your best judgment on it?

“A. About two truck lengths, I guess.

"Q. So you stopped your truck then within a hundred feet, is that right ?

“A. Yes, sir.”

It is obvious from this, the only testimony in the record on this point, that if you add the distance traveled during the reaction time of driver #2, the signal was given for more than a hundred feet. This, to our minds, eliminates Ground No. 4.

Grounds No. 6 and 7 are not supported under the evidence since truck #2, immediately following, was able to stop without endangering himself or truck #1.

We are aware of the rule that mere compliance with1 statutory requirements does not relieve a party from responsibility for negligence as a matter of law. See Roadway Express, Inc. v. Baty et al., 189 Okl. 180, 114 P.2d 935, and Garner v. Myers, Okl., 318 P.2d 410.

We are also aware that we said in Norman v. Scrivner-Stevens Co., 201 Okl. 218, 204 P.2d 277, p. 279, that “The question whether the negligence charged was the proximate cause of an injury is to be determined according to the natural and probable consequences.” and that “Generally it is held that negligence which only serves to furnish the opportunity for injury cannot be the proximate cause where injury occurs as a direct result of an intervening force. The law does not charge a person with all possible consequences of a wrongful act, but ignores remote causes and looks for the proximate cause of the injury. Upon the basis of repeated consideration the rule gradually evolved is that where the negligence complained of only creates a condition, which thereafter is acted upon by a subsequent independent, unforeseeable, distinct agency and produces an injury, the original negligence is the remote rather than the proximate cause thereof. And, this is true though injury would not have occurred except for the original act. Town of Lyons v. Watt, 43 Colo. 238, 95 Pac. 949; Lemos v. Madden et al., 28 Wyo. 1, 200 P. 791; Jafek v. Public Service Co., 183 Okl. 32, 79 P.2d 813; City of Okmulgee v. Hemphill, supra [183 Okl. 450, 83 P.2d 189].”

In the instant case defendant Transcon in truck #1 avers a complete lack of evidence upon which the jury could find that its actions were the proximate cause of the accident. We are unable to conclude that under the statutes existing at the time the common-law requirements and the evidence here that the driver of truck #1 was required to assume that truck #3 would be following so closely behind truck #2 at such' a speed that when proper warning was given by truck #2, he (truck #3) would be unable to bring his vehicle to a stop within the time and distance available. To arrive at a different conclusion under the facts here, would, in our opinion, result in a rule of law that any truck driver, under circumstances here, who gives the required signal before bringing his truck to a stop at the entrance to a narrow bridge, would still be responsible for damage caused by the negligence of the drivers of all following vehicles. To our minds this is untenable.

The presentation of the matters relied upon for reversal of the judgment in this case compelled a careful review of the record to determine whether there was any competent evidence to sustain the jury’s verdict. The matters were fully briefed. Careful consideration of the evidence and the applicable law leads us to conclude that there was a total failure of proof that the actions of the Transcon truck immediately before the accident constituted the proximate cause of decedent’s injuries. The rule as stated in City of Okmulgee v. Hemphill, supra, and followed in Wilson et al. v. Shawnee Milling Co., Okl., 292 P.2d 147, p. 151, that “The proximate cause of an injury must be the efficient cause which sets in motion the chain of circumstances leading to the injury; if the negligence complained of merely furnishes a condition by which the injury was made possible and a subsequent independent act caused the injury, the existence of such' condition is not the proximate cause of the injury.” is determinative of the issues presented by Transcon.

The judgment of the trial court is reversed with direction to dismiss the action against defendant Transcon Freight Lines and Transport Indemnity Co. The judgment against defendant William Eugene Hall is affirmed.

BLACKBIRD, C. J., HALLEY, V. C. J., and IRWIN and LAVENDER, JJ., concur. WELCH, DAVISON, JOHNSON,. WILLIAMS and JACKSON, JJ., dissent.