Reedy v. Weathers

• Citation: 472 P.2d 914,1970 OK 130
• Decision Date: 30 June 1970
• Docket Number: No. 42567,42567
• Parties: Juanita REEDY, Plaintiff in Error, v. Ruby WEATHERS, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 914

472 P.2d 914

Juanita REEDY, Plaintiff in Error, v. Ruby WEATHERS, Defendant in Error.

No. 42567.

Supreme Court of Oklahoma.

June 30, 1970.

Syllabus by the Court

1. In a law action where the plaintiff permits the case to go to the jury without demurring to the evidence or asking for an instructed verdict, and does not challenge the sufficiency of the evidence until a motion for a new trial is filed, the question of whether the verdict in favor of the defendant is contrary to, or not supported by, the evidence will not be considered on appeal.

2. A trial judge should refrain from any comments during the conduct of a trial in the presence of the jury as to the merits of the case, but no comment or remark of the judge will be ground for reversal where the substantial rights of the plaintiff in error have not been violated.

Appeal from Court of Common Pleas of Tulsa County, R. F. Martin, Trial Judge.

Action for damages allegedly sustained by plaintiff in error as result of three-car collision in which her car was struck from the rear by car being operated by one of two joint defendants when it was struck from the rear by car being operated by defendant in error, the other joint defendant. The first-mentioned defendant filed nothing in the case and did not appear at first trial, which resulted in jury verdict, and judgment thereon, against both defendants. Trial court sustained motion for a new trial of other defendant, the defendant in error herein and vacated judgment as against her, but let judgment stand against defaulting defendant. Second trial, to a jury, resulted in a verdict, and judgment thereon, for the remaining defendant. When her motion for a new trial was overruled by trial court, she appealed to this court, on two propositions: First, that certain comments by the trial judge and by counsel for the defendant, in the presence of the jurors, prejudiced the jurors against the plaintiff by informing them that there had been a previous trial of the case and that judgment had been rendered against the other defendant, from which the jurors inferred that the plaintiff was seeking double recovery; and second, that the verdict in favor of the defendant was not supported by the evidence and was contrary to law. Judgment affirmed.

Van Cleave, Thomas, Liebler & Gresham, by Harley Van Cleave, Tulsa, for plaintiff in error.

Best, Sharp, Thomas & Glass, Joseph A. Sharp, Jack M. Thomas, Tulsa, for defendant in error.

LAVENDER, Justice.

This appeal, by the plaintiff below, Juanita Reedy, arises in an action for damages to her automobile, and for damages resulting from personal injuries, in the total amount of $6,614.70, allegedly sustained by the plaintiff as the result of a three-car collision involving automobiles being operated by the plaintiff, and by the defendant in error, Ruby Weathers (hereinafter called the defendant), and by one Emmitt Davis, who is not a party to this appeal.

The plaintiff alleged in her petition that the collision and her injuries and damages were the proximate result of combined acts of negligence on the part of Emmitt Davis and the defendant in the operation of their vehicles.

Davis was named as a defendant and was served, personally, with summons, but filed nothing in the case and did not appear at the trial. Trial to a jury resulted in a verdict, and judgment thereon, in the amount of $2,500.00, for the plaintiff and against both of the defendants. Davis did not file a motion for a new trial within the time allowed therefor by statute. The judgment as against him, became final and was allowed to stand when the trial court sustained this defendant's motion for a new trial and vacated the judgment as against her.

The subsequent new trial, to a jury, resulted in a verdict, and judgment thereon, for the defendant Weathers. The plaintiff's motion for a new trial was overruled by the trial court and she appealed to this court, contending, in one of her two propositions, that the verdict of the jury is not supported by the evidence and is contrary to law.

For reasons which will appear later herein, we do not outline the evidence as disclosed by the record on appeal. The defendant's brief does not dispute any of the statements made in the plaintiff's brief concerning the evidence, which are the basis of the statements of facts outlined herein.

The collision occurred on East 21st Street in the City of Tulsa, Oklahoma, about 150 feet east of its intersection with Lewis Avenue. In that vicinity, 21st Street was a four-lane, two-way, paved street, with two traffic lanes for east-bound traffic and two traffic-lanes for west-bound traffic. All three cars were headed east on 21st Street and were completely within the left-hand lane for east-bound traffic when the collision occurred.

At a point about 150 feet east of Lewis Avenue, the plaintiff brought her car to a complete stop behind a fourth car which had stopped in such left lane while in the process of making a left turn to enter a parking lot on the north side of 21st Street. When the plaintiff stopped her car, Davis brought his car to a complete stop behind her car and the defendant's car struck his car from the rear and knocked it into the rear-end of the plaintiff's car.

The plaintiff pleaded that Davis' negligence consisted in his failure to indicate his stop, either by arm signal or by stop light on the rear of his car, as provided in a pleaded ordinance of the City of Tulsa, and that the defendant's negligence consisted in driving her car, immediately behind the Davis car, in a manner which violated a pleaded ordinance of the City of Tulsa which provided that 'any speed greater than that which will enable the driver of vehicle to stop within the assured clear distance ahead is unlawful.'

A Tulsa police officer who investigated the collision, testified that none of the cars had been moved when he arrived at the scene; that there were no tire-skid-marks behind any of the cars; that he checked the stop lights on the plaintiff's car and they were working; that he checked the stop lights on the Davis car and they were not working, and Davis told him that he had not given a hand signal when stopping his car; that the defendant told him that she had changed from the right-hand lane to the left-hand lane, just before the collision, to get around a vehicle that had stopped in front of her, and could not tell that the Davis car was stopping because the brake light did not come on; that, since the defendant's car left no skid marks, he could not determine how fast it was going but would agree with the defendant's own estimate of five to seven miles per hour.

The defendant testified that it was cloudy at the time of the collision, but she could see five or six blocks; that she was going east on 21st Street in the right-hand lane after stopping for a red light at Lewis Avenue; that there was one or two cars ahead of hers; that, when a bus stopped immediately ahead of her car, she looked behind her, pulled into the left-hand lane, and accelerated to about five to seven miles per hour; that she did not notice that the Davis car was stopping until it was about a car length away when she noticed that their cars were getting closer together; that the brake lights on the Davis car had not come on and she did not see the driver give any signal of stopping; that she started to apply her brakes when the cars were about a car length apart, but could not touch the brake in time to avoid the collision. She admitted that she had been talking with a passenger in her car immediately before the collision.

The plaintiff testified concerning the amount of damage to her car and concerning her injuries and regular visits to her doctor, a three-day stay in a hospital at the direction of another doctor, and her doctor and hospital bills. She stated that her neck was caused to jerk by the impact of the collision, but did not feel any pain at that time (the police officer testified that she had not mentioned any injury when he investigated the collision), but began to feel it after she reached her office and had been bothered with pain ever since. Her attending doctor testified concerning her injuries, his treatment and prognosis. A physician with 37 years of specialization in orthopedics, who had examined the plaintiff at the request of the defendant about a year and ten months after the collision, or about five months prior to the trial, testified, upon behalf of the defendant, that the plaintiff complained of pain in turning her head to the left but that there was no complaint of pain in raising or lowering her head; that her neck appeared normal to him, but he could not tell about pain or headaches; and that serious injuries usually cause immediate pain, whereas minor ones might not cause pain until later.

Under her proposition that the jury's verdict is not supported by the evidence and is contrary to law, the plaintiff argues, first, that her car would not have been struck by the Davis car and she would not have been damaged, if the Davis car, which had come to a complete stop, had not been struck by the defendant's car; that, regardless of whether or not Davis failed to give any signal of stopping, in violation of the pleaded ordinance, the fact that the defendant's car struck the Davis car and knocked it into the plaintiff's car in spite of the defendant's having noticed that the Davis car was slowing down, establishes that the defendant was guilty of negligence per se by driving her vehicle at a speed greater than that which would allow her to stop the vehicle within the assured clear distance ahead, in violation of the other pleaded ordinance; that the defendant's admission that she was talking with a passenger in her car at the time of the collision also establishes negligence on her part; and that contributory negligence on the part of the...