Tully v. Wetzel , 97 Okla. 22 ( 1924 )

Numerous specifications of error are contained in the petition in error in this case, but only two are presented and argued by defendant in his brief, so that all others will be considered as abandoned. The first error complained of is to the refusal of the court to give defendant's requested instruction No. 4, which reads as follows:

"If you believe from the evidence that defendant upon approaching the car of plaintiff, and before reaching same, slackened the speed of his car to 15 miles per hour and sounded his horn, you must find for the defendant."

The testimony in the case, as abstracted in defendant's brief, is as follows:

"The plaintiff and several friends were driving along the Jefferson highway between Checotah and Muskogee. They stopped to change tires. The tire which had been taken off was lying almost in the direct middle of the road. Plaintiff, with the intention of putting it on the back of the car, stepped out, picked up one side of the tire and was pulling it towards him when same was struck by defendant's car. This turned plaintiff around, he throw out his foot and defendant's car ran over it. The road was straight for a long distance in both directions and plaintiff and his friends could have seen an approaching car. They all admitted that they were paying no attention to approaching vehicles but were absorbed in the discussion of the ball game. None of the party heard a horn or saw the car until it struck the tire. Defendant's car was traveling in the same direction as that of the plaintiff. When he got within about a quarter of a mile of plaintiff's car, he and the other occupants of his car noticed plaintiff's car standing about the middle of the road. Before reaching plaintiff's car defendant's horn was sounded several times and his speed slackened to ten or fifteen miles per hour. Plaintiff's car obstructed the highway to such an extent that it was necessary to make a short turn to get around it. Suddenly plaintiff appeared with his head down rolling a tire. Vincent Tully, who was driving, did not see plaintiff until the front of defendant's car was even with the rear of that of plaintiff. Vincent Tully, seeing he was about to hit plaintiff, swerved to the left. Defendant immediately stopped his car, but believing no one was hurt, went on."

A mere casual reading of this requested instruction, in connection with the above abstract of the evidence, is sufficient to show that it was properly refused by the trial court. This instruction excludes from the jury's consideration that allegation of plaintiff's petition and the testimony in support thereof, which reads, "and did in reckless disregard of the rights and safety of plaintiff by driving too close to plaintiff's car and instead of driving on the left-hand side of the road in a careful manner" inflict the injury complained of by plaintiff. In addition to the testimony abstracted by defendant in his brief, the record discloses by two or three witnesses, some of whom were in a car following, defendant's car, that when defendant's car struck the casing, which plaintiff had in his hands, it struck with such force as to knock the casing off of the rim and throw the casing some five or six feet in the air. The testimony further shows that when struck the plaintiff was some four or five feet from the side of his car and that the unused portion of the roadway to the left of plaintiff was approximately 12 feet in width. For the court to have instructed the jury that if plaintiff slackened the speed of his car to 15 miles her hour and sounded his horn he would not be liable would have been to take from the consideration of the jury all testimony bearing upon or tending to show other elements of negligence accompanying the accident as charged in plaintiffs petition. Actionable negligence exists, where there is testimony tending to show (a) a duty owing by defendant to the plaintiff; (b) a failure on the part of defendant to discharge that duty; (c) injury to the plaintiff resulting proximately from defendant's failure to perform such duty; and it is error for the court to refuse to submit to the jury for determination a question of negligence so presented.

The other ground of error presented and argued by defendant is that the court erred in its instructions to the jury numbered 9, 10, and 12. These instructions complained of are as follows:

"9. You are further instructed that the laws of the state of Oklahoma provide as follows: 'All vehicles overtaking others, shall, in passing, keep to the left of the center of the road and shall not pull over to the right until entirely clear of the vehicle passed.' 'All motor vehicles before passing other vehicles from the rear shall give notice of approach by a horn or other signal before passing; provided, that said vehicle shall be required when signaled to turn to one side and give half the road.'

"10. You are further instructed that if you believe that the plaintiff has proven by a preponderance of the evidence that the defendant failed to comply with any of the statutory provisions above set out, that is, if in passing plaintiff's car defendant did not keep to the left of the center of the road or if he pulled over to the right before he was entirely clear of plaintiff's car, or if he failed to give reasonable notice of his approach by horn or other signal before passing plaintiff's car, then upon such proof being made, you are instructed that the defendant, would be guilty of prima facie negligence, which means that the burden of proof would shift to the defendant to prove by a preponderance of the evidence that such prima facie negligence was not the proximate cause of the injury to the plaintiff.

"12. You are instructed that even though yon believe that the defendant was guilty of violating the statute above set cut, still, if you believe that the defendant has met the burden of proof sufficiently by showing by a preponderance of the evidence that such violation of the statute was not the proximate cause of the injury to the plaintiff, then the violation of such statute would not render said defendant liable to the plaintiff in this case."

These instructions are more favorable to the defendant than he was entitled to. Under the holdings of this court in numerous cases the violation of a statute, resulting in injury to another, is negligence per se and not merely prima facie. Spencer v. Holt, 82 Okla. 280, 200 P. 187; Whitehead Coal Mining Co. v. Pinkston. 71 Oklahoma, 175 P. 364; McAlester-Edwards Coal Co., v. Hoffar. 66 Okla. 26,166 P. 740.

The court instructed the jury on contributory negligence, and upon every theory which the evidence for the defendant in any way tended to establish. These instructions contained a fair statement of the pleadings, and presented the issues without confusion. Some criticism might be indulged against isolated paragraphs of the instructions, but when considered as a whole the general charge of the court fairly presented the law applicable to the facts and was more favorable to the defendant in some portions than he had a right to expect. The testimony shows that the injury suffered by the plaintiff is a permanent one, so that the verdict of the jury for the sum of $2,000, under the circumstances shown by this record, does not reflect any influence of passion or prejudice in fixing the amount of recovery. So far as the record discloses all witnesses testifying in the tire reputable citizens and credible, and it was peculiarly within the province of the, jury to weigh the evidence and to determine where the proponderance lay. Under Such circumstances this court will not disturb the verdict of the jury.

The judgment of the trial court herein should be in all things affirmed.

By the Court: It is so ordered.