Abbott v. Dingus
| Decision Date | 17 November 1914 |
| Docket Number | 3940. |
| Parties | ABBOTT ET AL. v. DINGUS. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 9, 1915.
Syllabus by the Court.
Where the sufficiency of a petition is challenged solely by an objection to the introduction of evidence thereunder, such objection, not being favored by the courts, should generally be overruled, unless there is a total failure to allege some matter essential to the relief sought, and should seldom, if ever, be sustained when the allegations are simply incomplete, indefinite, or conclusions of law.
The petition in this case, measured by the above rule, is sufficient.
The obligation which the law imposes upon a driver of a horse-drawn vehicle is to exercise reasonable care, to the end of keeping his horses and vehicle under such control as to be able to prevent a collision with other vehicles or pedestrians on the highway.
While the law does not make a driver upon a public street or highway an insurer against accidents which may happen because of his being there, yet it demands of him the exercise of reasonable or ordinary care; and, as in every other situation, this degree of care is one commensurate with the danger to others which attends the particular situation.
It is only when the evidence, with all the inferences the jury could justifiably draw from it, will be insufficient to support a verdict for plaintiff that the court is authorized to direct a verdict for defendants; and, unless the conclusion follows as a matter of law that no recovery can be had upon any view that can be properly taken of the facts which the evidence tends to establish, the case should be left to the jury, under proper instructions.
The evidence is discussed in the opinion and held sufficient.
Commissioners' Opinion, Division No. 2. Error from District Court, Cleveland County; R. McMillan, Judge.
Action by Rebecca Dingus against Charles E. Abbott and another. Judgment for plaintiff, and defendants bring error. Affirmed.
W. L Eagleton, of Norman, for plaintiffs in error.
J. B Dudley, of Norman, for defendant in error.
This is a suit brought by Rebecca Dingus, as plaintiff below, against plaintiffs in error, as defendants, to recover damages for personal injuries and the destruction of a carriage caused by a runaway team belonging to defendants. The cause was tried to a jury, and a verdict returned in plaintiff's favor for the sum of $235. The defendants below, feeling aggrieved have brought the case here for review, and argue for a reversal, three propositions: First, the sufficiency of the petition; second, the sufficiency of the evidence; and third, the giving of certain instructions and the refusal of others. We shall discuss the points in the order named.
(1) Are the allegations of the petition sufficient? It was not attacked in the lower court by demurrer or motion to make more definite and certain. Its sufficiency was first challenged by an objection to the introduction of any evidence. As a premise it may be said, in the beginning, that this form of attack does not seem to be favored in this state. In Johnston v. Chapman, 38 Okl. 42, 131 P. 1078, it is said:
"Where the sufficiency of a petition is challenged solely by an objection to the introduction of evidence thereunder, such objection, not being favored by the courts, should generally be overruled, unless there is a total failure to allege some matters essential to the relief sought, and should seldom, if ever, be sustained when the allegations are simply incomplete, indefinite, or conclusions of law."
See, also, M., O. & G. Ry. Co. v. McClellan, 35 Okl. 609, 130 P. 916; Hogan v. Bailey, 27 Okl. 15, 110 P. 890.
We shall view the petition in the light of the rule announced above, and will say, by way of further premise, that the elements entering into actionable negligence, where it is not claimed that the action was willful or intentional, are: First, the existence of a duty on the part of the defendant toward the plaintiff; second, the failure to perform that duty; third, injury to the plaintiff because of such failure. C., R.I. & P. Ry. Co. v. Duran, 38 Okl. 719, 134 P. 876; St. L. & S. F. Ry. Co. v. Lee, 37 Okl. 545, 132 P. 1072, 46 L. R. A. (N. S.) 357; C., R.I. & P. Ry. Co. v. McIntire, 29 Okl. 797, 119 P. 1008.
The petition states, in substance, that the plaintiff and her young daughter were riding in a carriage drawn by a horse on Main street in the city of Norman, en route home from church, and just as they reached a certain point (named) a large team of horses belonging to defendants, hitched to a draywagon, came running up behind the carriage and, without warning or knowledge upon the part of the plaintiff, struck and overturned the carriage, rendering it worthless, throwing the plaintiff and her child upon the ground, whereby she was injured, the particulars of her injuries being fully described. The negligence of defendants is set out in paragraph 2 of the petition, which follows:
"The plaintiff further states that a few minutes prior to said accident, the defendants' servant, Ivy Brown, under the direction of the defendants, was using and driving said team, hitched to a wagon, on said street in said city, and that said team was wild and unruly, and the bridle, bridle bits, lines, and harness in general, which were then being used on said team by the servant of said defendants, were of an inferior grade, and on account of the negligence and carelessness of the defendants in this respect, and the negligence and carelessness of the defendants' servant in the use and management of said team, said team ran away, and in so doing struck plaintiff's carriage at the time and place, and in the manner aforesaid, on account of which plaintiff sustained and received the injuries aforesaid, without any fault or negligence upon her part; that the carriage in which plaintiff was riding at the time of said accident had a top on it, and the back curtain thereof was fastened down, and the plaintiff was unable to see or hear said team, and the accident occurred and the injuries resulted without any fault or negligence on the part of plaintiff."
Considering the petition, it will not be disputed that a traveler on a city street is under a duty at all times to other travelers. He is under the duty to use reasonable care to not collide with or injure other travelers. This duty is very well stated by Judge Thompson in his work on Negligence, vol. 1, § 1284:
"The obligation which the law imposes upon a driver is to exercise reasonable care, to the end of keeping his horses and vehicles under such control as to be able to prevent a collision with another driver or a foot passenger on the highway."
And in ...
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