Denco Bus Co. v. Keller

• Decision Date: 15 November 1949
• Docket Number: 33759.
• Citation: 212 P.2d 469,202 Okla. 263,1949 OK 249
• Parties: DENCO BUS CO. v. KELLER.
• Court: Oklahoma Supreme Court

212 P.2d 469

202 Okla. 263, 1949 OK 249

DENCO BUS CO. v. KELLER.

No. 33759.

Supreme Court of Oklahoma

November 15, 1949

Rehearing Denied Dec. 13, 1949.

Edith Keller sued the Denco Bus Company for injuries sustained while riding as a passenger in defendant's bus.

From a judgment of the District Court of Seminole County, Bob Howell, J., in favor of the plaintiff, the defendant appealed.

The Supreme Court, Johnson, J., held that the evidence established a prima facie case of negligence, that the evidence sustained recovery, that the instructions were proper, and that recovery of $7,166.60 for traumatic arthritis was not excessive.

Arnold V. C.J., dissenting.

Action against common carrier for injuries sustained by passenger being of legal cognizance, jury's verdict was deemed to include specific findings in favor of prevailing party upon all issues of fact and Supreme Court could not disturb jury's finding if there was evidence reasonably tending to support such finding.

Where no prejudicial errors of law are shown in instructions or court's ruling on law questions presented during trial verdict supported by competent evidence is conclusive on appeal.

Syllabus by the Court.

1. Undisputed evidence showing the occurrence of a sudden stop of a 'bus,' carrying passengers for hire, of sufficient violence to throw the plaintiff and other passengers on the floor of the bus, caused by the driver trying to pass a truck when there were at certain intervals piles of sand and gravel in the center of the highway as material for road repairs, clearly observable to said driver, and that said bus collided with one of said sand and gravel piles with such force and violence as to injure plaintiff, is sufficient to justify an inference of some breach of duty owed to plaintiff by the carrier, and casts the burden upon it of relieving itself of responsibility by showing that the injury was the result of an accident which the exercise of due skill, foresight, and diligence could not have prevented.

2. The admission of allegedly incompetent evidence was not prejudicial error, where that evidence was merely cumulative, and there was other sufficient and competent evidence to sustain the judgment, and, if the evidence of a witness on a particular point is positive and unequivocal and uncontradicted, the admission of incompetent evidence tending to corroborate her on that point being merely cumulative is not reversible error.

3. Jury may consider effect of injuries on plaintiff's physical condition, both present and reasonably to result in the future, in determining amount of damages.

4. Pain and suffering which appear reasonably certain that plaintiff will suffer in future as result of injuries may be considered in determining amount of recovery in personal injury action.

5. Absolute standards to measure damages for personal injuries are unavailable and matter is largely in discretion of jury, and personal injury verdict will not be set aside for excessive damages unless it clearly appears that the jury committed some gross error, acted under some improper bias or totally mistook the applicable rules of law.

6. $7,166.60 for injuries to back and spine causing traumatic arthritis, two years loss of earning capacity, medical attention in the sum of $500.00, pain and suffering and future pain and suffering and probable permanent loss or partial permanent loss of earning capacity, was not excessive, and a jury's verdict supported by competent evidence will not be disturbed on appeal in absence of prejudicial errors of law in court's instructions or in its rulings on questions of law presented during the trial.

Draper Grigsby, Oklahoma City, for plaintiff in error.

Allen G. Nichols, Walter Billingsley, Wewoka, for defendant in error.

JOHNSON Justice.

This action was commenced on the 5th day of February, 1947, by plaintiff in which she sought damages in the sum of $10,300.00 for personal injuries to her. The issues were joined and a trial had to a jury on the 18th day of December, 1947, which resulted in a verdict in favor of the plaintiff in the sum of $7,166.60. From this judgment and order of the trial court overruling a motion for a new trial, this appeal is prosecuted.

The parties herein will be referred to as they appeared in the trial court.

Briefly, the facts as alleged are as follows. The defendant is a common carrier of passengers for hire, operating one of its bus lines between the cities of Ada, Oklahoma, and Pauls Valley, Oklahoma, over Highway 19; that plaintiff on September 6, 1945, was riding as a paid passenger on defendant's bus between Ada, Oklahoma, and Pauls Valley; that several miles east of Pauls Valley the driver of defendant's bus negligently tried to pass a truck; that the highway was under repair; that large piles of sand and gravel, material for the repair work, were placed at intervals along the center of the highway, which were clearly observable to the driver; that being unable to pass the truck in the distance between said piles of sand or gravel, and as the bus was going at such high rate of speed that it could not stop upon failure to pass said truck between the sand or gravel pile, but ran head on into a sand or gravel pile with such terrific impact that it came to a sudden stop; that by reason thereof the plaintiff was thrown from her seat against the front part of the bus with such force and violence as to cause her much pain and suffering; that plaintiff was forced by reason of this injury to remain in bed for several days and was immediately placed under the care of physicians; that she sustained injuries to her spinal column; that she has suffered great and excruciating pain; that she has continued to suffer pain in her neck, spine and shoulders; that her spine has been permanently injured; that the injury prevents her from doing any work and has caused her to become afflicted with traumatic arthritis; that her condition continues to grow progressively worse; that she suffered shock and continues to suffer by reason of her condition; that since said accident she is unable to sleep at night by reason of her nervous condition; that she has constantly had medical treatment, but is unable to get relief from her pain and suffering; that before said injury she was able to work and earn current wages; that she is unable to do so now; that her injuries were caused by the gross carelessness and negligence of the defendant; that she has suffered great mental anguish and permanent disability.

Defendant's first contention is that the court erred in overruling the demurrer to the evidence. The defendant argues that the evidence did not show any actionable or primary negligence by defendant. To sustain this contention, the defendant urges that plaintiff having alleged negligence assumed the burden of proof beyond that of establishing a prima facie case. This contention is untenable. In A. & A. Taxicab Co. v. Bass, 177 Okl. 248, 58 P.2d 567, this court said:

'The law places upon common carriers the duty of exercising a very high degree of diligence in matters respecting the safety of their passengers * * *' and,

'Where the plaintiff shows by competent evidence to the satisfaction of the jury that he was a passenger in a taxicab operated by defendants and that there was a collision between such taxicab and another car and that such collision was proximately caused by ineffective brakes and the careless and negligent manner in which said taxicab was driven and shows, to the satisfaction of the jury, that the injury complained of and the extent thereof were the direct and proximate result of such collision, he thereby establishes a prima facie case which raises the presumption of negligence and places the burden upon said carriers to overcome such presumption to the satisfaction of the jury.'

The evidence is undisputed that plaintiff was a passenger, with full fare paid, and riding on defendant's bus for such passengers; that while so traveling the driver of the bus tried to pass a truck; that there were large sand and gravel piles, material for road repair, at intervals in the center of the highway; that while attempting to pass the truck, the bus collided with one of the sand and gravel piles with such force and violence as to cause the bus to come to a sudden stop, throwing plaintiff out of her seat and causing her serious injury. These facts, under the circumstances, established a prima facie case of negligence against the defendant, thus casting the burden upon the defendant to show that it had exercised the utmost care for the safety of its passengers, and whether the defendant had met this burden was a question for the jury. See A. & A. Taxicab Co. v. Bass, supra. Under the record in this case it was not error for the trial court to overrule the demurrer and refuse to instruct the jury to render a verdict for the defendant.

The defendant urges that the verdict is not sustained by the evidence. The record discloses sufficient evidence to sustain the verdict of the jury. This being an action of legal cognizance, the jury's verdict is deemed to include specific findings in favor of the prevailing party upon all issues of fact, and it is not within the province of this court to disturb the finding of the jury when there is evidence reasonably tending to support such finding. Ramsey v. McKay, 44 Okl. 774, 146 P. 210; Union Transportation Co. v. Lamb, 190 Okl. 327, 123 P.2d 660; A. & A. Taxicab Co. v. Bass, supra.

Defendant's further contention that the jury's verdict disregarded the instructions of the court in equally untenable. Defendant urges that an examination of the evidence of the plaintiff and defendant only shows an accident occurred to the defendant's bus on which the...