Butts v. Anthis

• Decision Date: 16 November 1937
• Docket Number: Case Number: 27476
• Parties: BUTTS v. ANTHIS
• Court: Oklahoma Supreme Court

1937 OK 655

73 P.2d 843

181 Okla. 276

BUTTS v. ANTHIS

Case Number: 27476

Supreme Court of Oklahoma

Decided: November 16, 1937

Syllabus

¶0 1. NEGLIGENCE - Scope of Responsibility for Consequences of Negligence.

A person guilty of negligence involving a breach of his duty should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the facts and circumstances which in fact exist, whether they could have been ascertained by reasonable diligence or not, would have thought of at the time of the negligent act as reasonably possible to follow, if they had been suggested to his mind.

2. AUTOMOBILES - Question for Jury Whether Driving on Highway With Flat Tire Constituted Negligence.

Whether driving an automobile along a highway with a flat tire constitutes negligence depends upon facts, which it is the province of a jury to decide.

3. APPEAL AND ERROR - Review of Error in Instructions - Necessary Request and Exceptions.

To avail himself of error in the failure of the court to give instructions or of error in instructions given, the complaining party must in the one case make proper request and in the other take proper exceptions to the act of the court.

4. SAME - General Exception to Refusal to Give Several Requested Instructions not Sufficient.

Where several instructions to the jury are requested, and the court refuses to give any of them, a general exception to such refusal will not be sufficient on appeal to raise in this court the correctness of such ruling.

Appeal from District Court, Logan County; Henry W. Hoel, Judge.

Action by Mrs. Ilah Anthis against Nip Butts, doing business as Mouton Attraction Company, for negligence. Judgment for plaintiff, and defendant appeals. Affirmed.

H.M. Adams and John A. Remy, for plaintiff in error.

Robert W. Hoyland and E.S. Lowther, for defendant in error.

GIBSON, J.

¶1 Mrs. Ilah Anthis owned a farm close to U.S. Highway 77 in Logan comity. On July 15, 1934, a very hot day, a truck of the carnival attraction owned by Nipp Butts was driven with a flat tire over the concrete pavement on said highway for such a distance and at such a speed that the friction resulting therefrom ignited the tire, which flew off the wheel and set fire to the grass alongside the road. The fire spread into and upon Mrs. Anthis' farm, doing serious damage to her fence, crops and meadow. She recovered damages in the court below, and Butts, on appeal from the verdict, urges chiefly that the alleged act of negligence complained of was not the ordinary, reasonable, or proximate cause of the injury complained of, that the ignition of the tire could not reasonably be anticipated, that the injury was the result of a peculiar, unusual, or unexpected occurrence.

¶2 It can hardly be denied that the ignition of the tire was a peculiar and unusual occurrence. The verdict of the jury, however, decided that such an occurrence, though peculiar and unusual, wilts the proximate result of driving on a fiat tire. This court has held:

"The law requires a defendant to reasonably guard against probabilities, not possibilities. * * *

"For an act to be deemed the proximate cause of an injury, it must be such that a person of ordinary intelligence would have foreseen that the injury was liable to be produced in the act." Oklahoma Gas & Electric Co. v. Wilson, 172 Okla. 540, 45 P.2d 750.

"The test of whether an act was the remote or proximate cause of the injury complained of is whether the injury was one to be anticipated." Cleveland v. Stanley, 155 Okla. 272, 9 P.2d 10.

¶3 These definitions are amplified and explained in Cushing Gasoline Co. v. Hutchins, 93 Okla. 13, 219 P. 408, where this court said:

"A person guilty of negligence involving a breach of his duty should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the facts and circumstances which in fact exist, whether they could have been ascertained by reasonable diligence or not, would have thought of at the time of the negligent act as reasonably possible to follow, if they had been suggested to his mind."

¶4 The last-cited case is also authority to the effect that whether certain acts are or are not negligence is a question for the jury to decide.

¶5 The court cannot say as a matter of law that driving on a paved road with a flat tire is or is not negligence.

"To hold that one who drives an automobile along the highway with a flat tire is guilty of negligence as a matter of law would be to announce an extreme doctrine, and one not founded upon any substantial basis of reason. It cannot be said that a person of ordinary prudence would not, under any circumstances, drive an automobile along the highway with one flat tire until a point could be reached where the tire could be changed." Grubbs et ux. v. Grayson et ux. (Wash.) 5 P.2d 1033.

¶6 The result of the holding in that case was to leave to the jury the decision as to whether, under all the facts, there was negligence in driving on a flat tire.

¶7 So it has been held that it may be negligence to fail to stop an automobile after it is known to have a fiat tire. Christos v. Manos (La. App.) 134 So. 713. It has also been held to be negligence to drive a car "on the rim." Porter v. Hetherington (Mo....