Cales v. Harpole ( 1926 )

Numerous errors are alleged in the petition in error, but in his brief defendant presents his argument for reversal under two propositions as follows:

"First. That there is no evidence showing negligence on the part of the defendant.

"Second. That, if the defendant was negligent, there is no causal connection between the negligence and injury complained of."

As both of these propositions raise the question of the sufficiency of plaintiff's evidence to authorize a submission of the case to the jury upon the question of primary negligence, both will be considered together, and such consideration involves a statement of the substance of plaintiff's evidence.

Ben Harpole and O. C. Robertson were together in Harpole's car at the time of the accident, and their testimony is substantially the same upon the issue of primary negligence. They both say, in substance:

That when plaintiff drove off the east end of the bridge the truck was about 100 to 125 yards east of the bridge; that it was coming down a slight incline or grade; that plaintiff drove to the right of the road and stopped his car about 15 or 20 feet from the bridge for the truck to pass; that there was a ditch on each side of the road at this point and that the roadway was wide enough for the truck to have passed safely if driven with care; that when plaintiff stopped his car the truck was approaching down the incline at a speed of 25 or 30 miles an hour, but that its speed was reduced to about 20 miles at the time of the collision; that the left front wheel of the truck struck the left front hub of the plaintiff's car, tearing away the left front fender, left running board, left rear fender, and badly injuring the left rear wheel; that when the occupants of plaintiff's car got out of it on the right-hand side after the collision, it was standing so near the edge of the ditch, they had to step from the running board into the ditch.

Jim Snoddy and J. R. Bass visited the scene of the collision the same day, and their testimony goes merely to the condition and width of the road at and adjacent to that point. Their testimony is substantially alike and its material features are these: That the roadway is about 16 feet wide at this point with a ditch on each side; that the ditch on the south (plaintiff's) side of the road is four or five feet deep and on the north side 18 to 24 inches deep; that the road from the bridge toward the east is flat for approximately 100 yards and then there is a four or five per cent. grade up a hill; that they examined the tracks left by plaintiff's car and these showed that the car was stopped within six or eight inches of the bank of the ditch on the south side; that if the truck had stayed in the ruts on the north side of the roadway it would have passed plaintiff's car without striking it.

This is a fair summary of plaintiff's evidence in support of the allegations of primary negligence set out in his petition. There was some evidence as to the bad condition of the brakes on the truck and of admissions by defendant's agent in charge of the truck. None of this evidence was competent or material upon the issue of primary negligence made by the pleadings, and cannot be considered upon the question here under consideration.

Under the law of this state there are three degrees of negligence, viz., slight, ordinary and gross. (Comp. Stat. 1921, sec. 3532.) These degrees are defined by section 3533, Id., thus:

"Slight negligence consists in the want of great care and diligence; ordinary negligence in the want of ordinary care and diligence; and gross negligence in the want of slight care and diligence."

It is manifest from this language that the existence or nonexistence of negligence in any given case must depend solely upon the facts and circumstances shown in that particular case in their application to the kind and degree of negligence alleged. Concretely considered, it is not clearly evident that a speed of 20 miles an hour, or even 15 miles an hour, under the circumstances here shown and in view of the results, did not constitute negligence. Where reasonable men may honestly draw different conclusions as to the existence of negligence from facts and circumstances in evidence in a case, its existence is a question of fact and not of law. Rock Island Coal Mining Co. v. Davis, 44 Okla. 412, 144 P. 600; City of Woodward v. Bowder, 46 Okla. 505, 149 P. 138; Taliaferro v. Atchison, T. S. F. Ry. Co., 61 Okla. 27, 160 P. 69, Atchison, T. S. F. Ry. Co. v. Bratcher, Adm'r, 99 Okla. 74,225 P. 941.

The question of the legal sufficiency of plaintiff's evidence to establish primary negligence was not presented to the trial court by demurrer to plaintiff's evidence, and at the conclusion of all the evidence there was such a conflict as to remove all doubt that it was the province of the jury to determine the fact, and in doing so to pass upon the credibility of the witnesses, and the weight and value of their testimony. No exceptions were reserved to any of the court's instructions. Under these circumstances it must be held that the verdict of the jury is conclusive, and the judgment of the trial court based thereon is accordingly affirmed.

By the Court: It is so ordered.