Berbohn v. Pinkerton
| Decision Date | 10 January 1953 |
| Docket Number | No. 35228,35228 |
| Parties | BERBOHN v. PINKERTON et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Negligence comprehends a failure to exercise due care as required by the circumstances of the case; a failure to do what a person of ordinary prudence would have done under the circumstances or the doing of what such a person would not have done under the circumstances.
2. A determination of the requirements of due care as the same should be exercised by an ordinarily prudent person rests in the first instance with the jury, and it is only where reasonable men would not differ or where the law definitely prescribes the standard of duty that the court may properly interfere with or ignore the determination of that fact-finding group.
Ted R. Fisher, Watonga, for plaintiff in error.
Draper Grigsby, Oklahoma City, for defendants in error.
O'NEAL, Justice.
The amended petition substantially alleges that Lena Mae Porter, on February 6, 1941, was riding as a guest in an automobile driven by her husband, which automobile was traveling in an easterly direction on U. S. Highway 270, at a point approximately one-half mile west of the city of Watonga, Oklahoma, when the accident occurred resulting in her death.
The defendant, Carl Pinkerton, was the owner of a truck, with trailer attached, which truck was being operated at the time by the defendant, Theodore Gannon. The said truck made a U-turn on said Highway, the front end of the truck extending in a southeasterly direction upon the south edge of the paved highway and the rear end of the truck, or trailer, extending in a northwesterly direction near the north edge of the paved highway; that the truck with trailer body extended a distance of 44 feet, completely blocking the highway from travel by other vehicles; that the automobile in which Lena Mae Porter was riding ran into the west side of the body of said trailer and from the resulting collision, Mrs. Porter received injuries resulting in her immediate death.
The petition specifically alleges that the said defendant, Theodore Gannon, knew, or should have known, that the paving slab on said highway at said point was only 21 feet wide, and that each of the shoulders of said highway on each side of said paving slab were only 11 feet wide, and in making a left turn, or in making a U-turn, with said truck at said time and place, such truck would completely block said highway to all other vehicles traveling upon the highway, for the period of time necessary to move said truck into the regular traffic lanes on the paving of said highway.
Each of the defendants filed answers denying generally all of the allegations of plaintiff's petition, and further pleaded that plaintiff's deceased was guilty of contributory negligence and by reason thereof should not recover herein.
At the close of plaintiff's case, defendants interposed a demurrer to plaintiff's evidence upon the ground that plaintiff's evidence did not make out a case to establish prima facie negligence. The trial court sustained the demurrer and entered judgment for defendants. From the order and judgment rendered, plaintiff appeals.
The sole question here presented is whether the facts established in the trial of the cause prove primary negligence on the part of the driver of the truck. The evidence shows that Theodore Gannon, the driver of the truck, parked the truck in front of the Grove residence a short time before the accident here involved. Desiring to return to Watonga, one-half mile east of the Grove residence, he drove his truck on the paved highway and made a U-turn to the left. The front of the truck at the time of the accident was facing in a southeasterly direction, the motor extending upon the shoulder on the south side of the paved highway, and the rear end of the body trailer extended to the northwest near the north edge of the blacktop of the highway. In this position, the entire highway was blocked from traffic. The automobile occupied by Mrs. Porter and operated by her husband, ran into the truck approximately nine feet from the rear end thereof. The impact pushed the truck some twelve feet sideways in an easterly direction.
Defendants assert that the driver of the truck had a lawful right to operate the truck upon the highway, and that turning across the highway violated no statutory provision or rule of the road. The statement is an over simplification of the duty required, under the circumstances of the case. Under the undisputed facts there were two spaces off of the highway; one immediately north of the blacktop and the Grove house, and one east of the Grove house, where the 44 foot length vehicle could have made a U-turn. Gannon, however, chose the other method. The case cannot be resolved by admitting his right to the use of the highway, but must be decided on whether the use was a reasonable one under the circumstances disclosed.
The physical condition of the paved highway, its abutment and the condition of the land lying between the north edge of the highway and the Grove residence where the defendant...
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