Haskell v. Kennedy , 151 Okla. 12 ( 1931 )

This is an action commenced by defendant in error, a minor, by his father and mother as next friends, hereinafter referred to as plaintiff, against plaintiffs in error, hereinafter referred to as defendants, to recover damages for personal injuries alleged to have been received by being struck by an automobile driven by an employee of defendants along Main street in the town of Fairfax, Okla. The injury was alleged to have been received on February 5, 1928.

The petition alleges, in substance, that plaintiff was three years of age, and on the 5th day of February, 1928, was playing in the parking in the center of Main street in front of his home in Fairfax, Okla.; that one Ben Johnson, the servant, agent, and employee of defendants, while on an errand for defendants, drove the automobile belonging to defendants at a great and excessive rate of speed, some 35 or 40 miles per hour, and at a rate of speed prohibited by an ordinance of said town of Fairfax, over and along said street, and as it approached the place where plaintiff was playing, the automobile swerved from the paved portion of the street, up over the curb and on to the parking where plaintiff was at play, and struck plaintiff, knocking him down and into the gutter, whereby he was seriously and dangerously injured, etc.

It further alleged that defendants and their said employee knew that children were in the habit of playing in said parking, and that said employee knew at the time that children were at play therein, and was negligent in failing to keep a proper lookout for said children, and the defendants were also negligent in that the brakes on said automobile were not kept in good condition.

The ordinance of the town of Fairfax fixing the speed of automobiles on* the street, at the place where the injury occurred, at 15 miles per hour, was pleaded, and a copy thereof attached to the petition.

Defendants answered by general denial, and also alleged, in substance, that their car was being driven by a careful driver, who had been employed by them as "chauffeur"; was being driven at a reasonable rate of speed and within the rate allowed by the laws of the state of Oklahoma, and while passing another automobile that stood parked on the paved street, plaintiff negligently and carelessly stepped out into the street from In front of said parked automobile directly in front of defendant's car, and that the driver did not observe him until he came in view from behind the parked car, and that when the driver observed or saw plaintiff, he used all reasonable diligence to avoid striking him, and in so doing swerved the car to the left and applied the brakes and in so doing unavoidably struck plaintiff, and that the injury, if any, was the result of unavoidable accident, and was not caused in any way by the negligence of the driver. It further alleged contributory negligence on the part of plaintiff, and specifically denied that the ordinance pleaded by plaintiff was a valid or legal ordinance of the town of Fairfax.

Plaintiff replied by general denial.

The cause was tried to a jury resulting in a verdict and judgment for plaintiff in the sum of $5,000. From this judgment and the order overruling motion for a new trial, defendants appeal.

The first assignment presented is that the court erred in overruling the demurrer of defendants to plaintiff's evidence, and in refusing to direct a verdict for defendants at the close of all the evidence.

This assignment cannot be sustained. We deem it unnecessary to review the evidence at length, but think it sufficient to say that the plaintiff produced evidence reasonably tending to prove every material allegation of his petition. There was much conflict in the evidence as a whole. Defendants produced evidence tending to support their allegations of unavoidable accident. The evidence being in conflict, the questions of fact involved were necessarily for the jury. There was no error in overruling the demurrer to plaintiff's evidence, and in refusing to direct a verdict for defendants.

It is next contended that the court erred in admitting in evidence the ordinance of the town of Fairfax pleaded by plaintiff. When the ordinance was offered in evidence by plaintiff, defendants objected to the introduction thereof in the following language:

"Comes now the defendants and objects to the introduction of this ordinance, it having not been shown that this ordinance was passed and published as required by section 4524 of the 1921 Compiled Statutes of Oklahoma."

Section 4524, C. O. S. 1921, referred to in the objection, applies to an ordinance book required to be kept by the city clerk of a city, and makes no mention of any requirement as to publication of ordinances except that the clerk is required to state in the ordinance book the name and date of the newspaper in which the ordinance was published.

Section 4521, C. O. S. 1921, is cited and relied upon together with Marth v. City of Kingfisher, 22 Okla. 602,98 P. 436. Although that section requires the publication of an ordinance, it applies only to ordinances of cities and has no application to ordinances of towns. The law relative to publication of ordinances enacted by towns is found in subdivision 17 of section 4762, C. O. S. 1921, which, among other things, provides:

"* * * but every by-law, ordinance or regulation, unless in case of emergency, shall be published in a newspaper of such town, if one be printed therein, or posted in five public places, at least ten days before the same shall take effect."

The ordinance in question contains an emergency clause in the following form:

"Section 5. An emergency is declared to exist whereby it is necessary for the immediate preservation of the public peace, health, and safety that this ordinance shall take effect and be in full force from and after its passage and approval of the board of trustees."

By the plain provision of subdivision 17 of section 4762, supra, the ordinance was not required to be published, and the objection of defendants was therefore properly overruled.

The contention, as made by the defendants in their brief, was that the ordinance was improperly admitted for the reason that, it being amendatory, it does not contain the entire sections purported to have been amended and does not repeal either of the old sections, as required by section 4522, C. O. S. 1921. This question was not presented to the trial court, and we doubt the right of defendants to raise it here for the first time. However, we have carefully considered the question presented, and are unable to agree with defendants' contention. The only case cited by defendants on this point is Pentecost v. Stiles, 5 Okla. 500, 49 P. 921. In that case it was held:

"In amending a section of a city ordinance, it is not necessary to incorporate into the amendatory section the provision of the ordinance to be amended; but what is required is that the amending section shall contain the entire provision on the subject contained in the old section, and which it is desired to enact by the new section, thus leaving the former section as entirely repealed."

If section 4522, supra, be applicable to the amendment of ordinances by towns, there is nothing in the record to show that the amending sections do not contain the entire provisions on the subject contained in the old sections, thus leaving the former sections entirely repealed. Defendants do not point out wherein the ordinance fails to comply with section 4522, supra, if applicable under the rule announced in Pentecost v. Stiles, supra.

Defendants next contend that there was error in giving instruction No. 9, wherein the court told the jury under what circumstances defendants would be liable for the acts of negligence of the driver of their automobile, and told the jury that if they found by a fair preponderance of the evidence that the driver of the car was guilty of such negligence, which was the proximate cause of the injury, the verdict should be in favor of the plaintiff, etc., "* * * or if you find that the plaintiff, Jack Kennedy, was guilty of negligence which brought about his injury, your verdict should be for the defendants." it is to the quoted portion of the instruction defendants object. They say that it is so indefinite and uncertain as to take from the jury altogether the question of contributory negligence.

The language used in the instruction is inaccurate in that the words "proximately contributed to his injury," or words to that effect, should have been used in connection with the words "brought about his injury." But we think when the instructions are read together, and particularly those on the question of contributory negligence, it will be readily seen that the jury could not have been misled by this slight inaccuracy. Furthermore, we think the defendants got all and more than they were entitled to in the instructions on contributory negligence. The court properly told the jury that the burden was on defendants to prove their affirmative allegations of contributory negligence, properly defined "negligence," and told the jury:

"You are instructed that 'contributory negligence' is negligence of the plaintiff, or of the person on account of whose injury the action is brought, amounting to a want of ordinary care, and proximately contributing to bringing about the injury complained of. In order to constitute such negligence as will bar a recovery for damages, two elements must concur: first, a want of ordinary care on the part of the plaintiff; second, a proximate connection between this want of ordinary care and the injury complained of."

When applying the definition to the plaintiff in the instant case, the court said:

"The question is, has the care, diligence, or skill demanded by the peculiar circumstances of the particular case been exercised? If so, there is no negligence; if not, there is negligence. The plaintiff was not negligent if he exercised reasonable care; he was negligent if he failed to do so. His conduct, like that of the defendant, is to be estimated by what a reasonable and prudent man would have done under the circumstances."

The jury was thereby told, in effect, that the degree of care required of plaintiff was that of an ordinarily prudent man. In another instruction the jury was told, in effect, that plaintiff, in order to recover, must have been "without any fault" upon his part. Certainly, defendants ought not to be heard to complain that the question of contributory negligence was taken from the jury. Especially so, when we consider that the plaintiff at the time of his injury was a minor but three and one-half years of age. All the responsibilities of a grown man of ordinary prudence were placed upon him by the court in its instructions. The jury under such circumstances could not be misled to defendants' prejudice by the slight inaccuracy pointed out.

Defendants next complain of instruction No. 10, given by the court, in which it was said if the jury should believe, from all the facts and circumstances in proof, that the driver of defendants' car was operating said car in a careful and prudent manner, having due regard for the safety of others, and plaintiff ran out into the street in front of said automobile in an attempt to cross the street, and that the driver of the car, after the discovery of the peril of plaintiff, used every effort to avoid the injury, but it was impossible for him to do so, then and under such circumstances the accident would be classed as unavoidable, and, under such circumstances, plaintiff could not recover.

It is contended that, by telling the jury that if the driver, after discovery of plaintiff's peril, used every effort to avoid the injury, but that it was impossible to do so, the accident would then be classed as unavoidable, the court placed a greater burden upon the driver of the car than the law requires. Defendants contend that in cases of discovered peril, all that is required is to use ordinary care, and if that is done, and the driver was not guilty of actionable negligence before the discovery of the peril, the accident would then be classed as unavoidable.

This court, in Wilson v. Roach, 101 Okla. 30, 222 P. 1000, defined an "unavoidable accident" as follows:

"An unavoidable accident is a casualty which occurs without negligence of either party, and when all means which common prudence suggests have been used to prevent it."

This definition seems to be a combination of those used in Galveston, H. S. A. R. Co. v. Gormley (Tex. Civ. App.) 35 S.W. 488, and Hodgson v. Dexter (U.S.) 12 Fed. Cas. 283.

In Wilson v. Roach, supra, it was said:

"The quantum of care required is to be estimated by the exigencies of the particular situation, and is usually a question of fact for the jury."

Applying this principle we think the instruction given, while not in strict accord with the definition of "unavoidable accident" usually given, fairly states the quantum of care required by the exigencies of the particular situation.

In Muskogee Elec. Traction Co. v. Tice, 116 Okla. 24,243 P. 175, this court approved an instruction in the following form:

"* * * If you believe, from the evidence that the plaintiff did not observe the approaching street car, but that the motorman on said street car saw the plaintiff, and when the motorman, otherwise in the exercise of ordinary care, observed that the plaintiff was not going to stop, then it was the duty of the motorman to use every means reasonably within his power to stop the street car and avoid a collision, and if he failed to do this, then your verdict should be for the plaintiff."

In Blashfield's Cyc. of Automobile Law, vol. 2, p. 1921, the following rule is stated:

"If the person sought to be charged under the last clear chance doctrine, after discovering the peril of the injured person, uses all the available means at his command to avoid striking him, he discharges his duty thereunder."

In some cases the driver is required to use the highest degree of care to avoid injury after discovery of peril. It would, therefore, seem that the general rule is that degree of care required, after the discovery of peril, is greater than ordinary care. The cases cited involve what is known as the doctrine of last clear chance, or doctrine of discovered peril. But if in observance of these rules an injury occurs, it could be classed as an unavoidable accident, and it is difficult to understand how it could be said that, if after the driver of an automobile discovers a pedestrian in a position of peril because of the near approach of his vehicle, and fails to use every effort within his means to avoid injury, if one occurs, it is the result of an unavoidable accident. The plaintiff was not relying upon negligence under the doctrine of last clear chance, but defendants, in substance, invoked that doctrine, and contended that the driver used ordinary care until the discovery of the peril of the plaintiff, and that all that was required after the discovery of the peril was "ordinary care."

We think the instruction, while not entirely accurate, states the law substantially, requiring the use of all available means at the command of the driver and does not require a reversal when applied to the particular facts and circumstances in the instant case. Certainly not where defendants, as in the instant case, fall to point out to the trial court the particular objection thereto, and failed to suggest or request a proper instruction on unavoidable accident.

Objection is made to instruction No. 11, which, in effect, told the jury that the driving of an automobile along the streets of the town of Fairfax in excess of the lawful rate of speed as fixed by the ordinance would be negligence per se, and if the jury should find that the defendants' car was being so driven, and as a result thereof plaintiff received the injuries complained of, the verdict should be for plaintiff. The principal objection to this instruction seems to be that it assumed the validity of the ordinance, whereas the ordinance was claimed to be invalid. We have already disposed of the question raised as to the validity of the ordinance, hence, the objection to the instruction on that ground is not well taken.

It is contended that the term "proximate result" was not defined by this or any other instruction, and the jury must have been misled. The contention is without merit. What is meant by negligence as the proximate cause of an injury was fully defined by the court in instruction No. 6. No other definition was contended for or suggested by defendants.

Finally it is contended that the court erred in instruction No. 18, wherein the jury was told that if they found from the evidence that it was the custom of children to play about the parking in the street and cross the street back and forth in going to and from the parking (which in this case was shown to be a space about a block long in the center of the street between two paved driveways) and the driver of defendants' car knew of those habits' and customs, it was the duty of said driver to watch out for such children and to keep his car under such control that he could stop without striking such children. There is no contention that this was not a proper statement of the law, but it is contended that there was no evidence whatever to show that the driver know of these habits and customs of the children. There is no merit in this contention. There is an abundance of evidence from which the jury could reasonably infer that the driver of the automobile knew of the custom. The custom was shown to have existed some two years prior to the date of the injury. The street was the main street of the town leading out to defendants' residence. Ben Johnson, the driver of the automobile, was shown to have been employed by defendants for more than a year of that time. He was not so employed for a year immediately before the date of the injury, but the evidence does show that he was employed in that capacity for as much as a year after the custom was shown to have existed.

There being no substantial error, the judgment is hereby affirmed.

LESTER, C. J., CLARK, V. C. J., and HEFNER, CULLISON, and SWINDALL, JJ., concur. KORNEGAY, J., dissents. ANDREWS and McNEILL, JJ., absent.