Bucktrot v. Partridge

• Citation: 1928 OK 209,265 P. 768,130 Okla. 122
• Decision Date: 27 March 1928
• Docket Number: Case Number: 18543
• Parties: BUCKTROT v. PARTRIDGE.
• Court: Supreme Court of Oklahoma

1928 OK 209

265 P. 768

130 Okla. 122

BUCKTROT v. PARTRIDGE.

Case Number: 18543

Supreme Court of Oklahoma

Decided: March 27, 1928

Syllabus

¶0 1. Appeal and Error--Negligence--Contributory Negligence a Jury Question--Conclusiveness of Verdict. Under section 6, art. 23, Constitution of Oklahoma, the question of contributory negligence cannot be made a question of law for the court, but, in all cases, is a question of fact for the jury to determine, and the finding of the jury upon this defense is conclusive upon this court on appeal when there is any evidence reasonably tending to support such finding.

2. Evidence--Admissibility of X-Ray Photographs. X-ray photographs are admissible in evidence as pictorial communications of a qualified witness and as a method of conveying to the court or jury a reproduction of the object about which the testimony is given when it appears that such X-ray photographs are properly made and correctly represent the object photographed.

3. Damages--Personal Injuries--Excessiveness of Verdict. In a suit for damages for personal injuries, before a verdict of the jury will be set aside as excessive, it must appear that the verdict is so excessive as to strike mankind, at first blush, as being beyond all measure unreasonable and outrageous and such as manifestly shows the jury to have been actuated by passion, partiality, prejudice, or corruption.

4. Appeal and Error--Trial--Sufficiency of Instructions Construed in Entirety. Instructions must be considered as a whole and construed together, and while a single instruction standing alone may be subject to criticism, yet, when the instructions, when taken together in their entirety, fairly submit the issues to the jury, the judgment of the trial court on the verdict of the jury will not be disturbed. It is not necessary that any particular paragraph of the instructions contain all the law of the case; it is sufficient if, when taken together and considered as a whole, they fairly present the law applicable to the issues in the pleadings upon which competent evidence has been introduced.

Error from District Court, Creek County; Lucien B. Wright, Special Judge. Action by Stella Partridge, a minor, by her guardian, father and next friend Sam Partridge, against Conzey Bucktrot. Judgment for plaintiff, and defendant appeals. Affirmed.

L. O. Lytle, James W. Cosgrove, and S.W. Maytubby, Jr., for plaintiff in error.

W. H. Odell and Streeter Speakman, for defendant in error.

PHELPS, J.

¶1 For convenience, the parties will herein be referred to as they appeared in the trial court; that is, defendant in error will be referred to as plaintiff and plaintiff in error will be referred to as defendant. Plaintiff, a 17-year old girl, by her father as guardian and next friend, filed her petition in the district court of Creek county claiming that she, in company with her father, was invited by defendant to ride with him in his new one-seated Packard automobile from Sapulpa to Muskogee and return; that on the return trip defendant invited or permitted her to drive the automobile until they reached Marshall's Inn, a refreshment stand by the roadside between Haskell and Bixby. There they stopped to get some sandwiches; that Sam Partridge, plaintiff's father, left the automobile and went into the inn to procure the sandwiches; that during his absence defendant attempted to obtrude his offensive and unwelcome attentions upon her and to take liberties with her; that when her father returned defendant abandoned his objectionable conduct toward plaintiff until the father again went into the inn to pay for the lunch, when defendant resumed such offensive conduct toward plaintiff; that she pushed him away, resisted and repulsed him and got out of the automobile and joined her father, who was emerging from the inn; that they all re-entered the automobile. Defendant, made angry and still smarting under the repulse and rebuff of plaintiff, took the steering wheel and started to drive his automobile intentionally, willfully, and maliciously at a high and dangerous rate of speed, over the repeated protests of both plaintiff and her father, and while so driving, near the point where the road crosses Snake creek, the automobile plunged down an embankment, resulting in personal injuries to plaintiff, for which she prayed judgment, actual and exemplary.

¶2 Defendant filed his answer, denying generally plaintiff's allegations, and further pleading contributory negligence. The cause was tried to a jury, resulting in a verdict for plaintiff in the sum of $ 25,500 actual damages, and $ 5,000 exemplary damages, and from the judgment rendered on such verdict defendant prosecutes this appeal. Counsel for defendant present their assignments of error under five propositions, the first of which is that plaintiff is not entitled to recover because she was guilty of contributory negligence. This proposition will be here considered in connection with the fourth proposition, which is that the defendant was entitled to a directed verdict in the trial court. Plaintiff testified that when they were at the inn she observed that defendant had been drinking intoxicating liquors. Defendant pleads that just before the accident resulting in the injury he was prevented from properly driving and guiding the automobile by plaintiff becoming excited and throwing her arm about his neck. Defendant claims that plaintiff, by such conduct and by remaining in the automobile with him after knowing that he was intoxicated, was guilty of contributory negligence barring a recovery for the injuries received.

¶3 Section 6, art. 23, Constitution of Oklahoma, provides that:

"The defense of contributory negligence or of assumption of risks shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury."

¶4 This section of the Constitution has many times been, by this court, construed, emphasized, and commented upon, some of the more recent decisions being Incorporated Town v. Burke, 88 Okla. 186, 211 P. 522, M., K. & T. Ry. Co. v. Perino, 89 Okla. 136, 214 P. 907, Goodrich v. City of Tulsa, 102 Okla. 90, 227 P. 91, Midland Valley Co. v. White, 109 Okla. 60, 234 P. 762, and Oklahoma Union Ry. Co. v. Lynch, 115 Okla. 146, 242 P. 176. It will thus be seen that there is no part of our system of jurisprudence that is more thoroughly and clearly settled than that, under the facts in the instant case, whether the plaintiff was guilty of contributory negligence, as claimed by the defendant, was a question for the jury to determine. That question was properly and fairly submitted to the jury under instructions numbered 6, 7, and 8, prepared and requested by counsel for defendant, and under the above-cited opinions this court has no authority to interfere with the jury's verdict thereon.

¶5 In Midland Valley v. White, supra, this court, in paragraph 2 of the syllabus, said:

"The standard for guiding the jury in considering the question of contributory negligence on the part of the plaintiff, in what would be the action of a reasonably prudent person of the age and experience of the plaintiff, under the conditions and circumstances of the particular case, and by this guide it is for the jury to determine the negligence on the part of the plaintiff, if any."

¶6 We, therefore, reach the conclusion that, since the jury found against defendant's contention on the question of contributory negligence properly submitted to them, defendant was not entitled to an instructed verdict, and defendant's propositions numbered 1 and 4 must here be decided adversely to his contention. In plaintiff's petition she alleges that the accident resulted in severely wounding, bruising, and lacerating her leg, hip, and thigh and crushing and mangling the bones of her right hip. At the trial three physicians were called to testify in behalf of plaintiff, and, in describing the injuries with which they found her suffering immediately after the accident, they testified that the pelvis, or hip bone, had been shattered and splintered; that the pelvis bone had been broken entirely in two at the pubis and that the ischium had been broken or torn loose, and, in amplifying and explaining their testimony, an X-ray photograph was introduced showing the injuries plaintiff received and from this X-ray photograph the doctors were permitted to explain such injuries to the jury.

¶7 Defendant objected to this evidence upon the grounds that it referred to the pelvis, whereas the petition alleged injuries to the hip. While the physicians used the technical terms, as applied to the various injured parts and bones broken, they explained that in the usual and common acceptation of the term, the parts injured might properly be considered the hip or hip bones.

¶8 Under defendant's proposition 2 it is urged that the introduction of this X-ray photograph was error for the reason that it tended to inflame the minds of the jury against the defendant. As we view it, this assignment of error is without merit. It was shown that the X-ray photograph was taken the second day after the injury and that the picture correctly showed the injuries received by plaintiff and we cannot agree that error may be predicated upon the actual facts shown, when properly presented, even though such facts may be harrowing in their appearance and details.

¶9 In Bartlesville Zinc Co. v. Fisher, 60 Okla. 139, 159 P. 476, this court said:

"The admission of X-ray plates in evidence rests fundamentally on the theory that they are the pictorial communication of a qualified witness who used this method of conveying to the jury a reproduction of the object of which he is testifying; this being true, the X-ray plates must be made a part of some qualified witness' testimony and the witness should qualify himself by showing that the process is known to himself to give correct representations, and that it is a true representation of such object."

¶10 In the instant case these...