Duncan v. Vance Drilling Co.

• Decision Date: 27 October 1942
• Docket Number: 30571.
• Citation: 130 P.2d 290,191 Okla. 389,1942 OK 359
• Parties: DUNCAN v. VANCE DRILLING CO. et al.
• Court: Oklahoma Supreme Court

130 P.2d 290

191 Okla. 389, 1942 OK 359

DUNCAN v. VANCE DRILLING CO. et al.

No. 30571.

Supreme Court of Oklahoma

October 27, 1942

Syllabus by the Court.

1. Prejudicial remarks of counsel in argument to the jury are not available as a ground for reversal unless objected to and exception taken at the time such remarks were made, and the remarks, as well as the objection and exception thereto, must be shown in the record of the proceedings of the trial. The objection is too late if made for the first time in the motion for new trial and by affidavit of opposing counsel.

2. In determining a motion for new trial on the ground of newly discovered evidence, it is the duty of the trial court to consider such newly discovered evidence in connection with and in the light of, the proceedings had and the evidence produced at the original trial, and unless it appears that the newly discovered evidence would, with reasonable probability, compel a different verdict, the motion should be denied.

3. The granting of a new trial on the ground of newly discovered evidence rests largely in the discretion of the trial court and where the trial court overrules said motion, this court will, in the absence of abuse of discretion, affirm the action of the trial court.

Appeal from District Court, Oklahoma County; Sam Hooker, Judge.

Action by Mary Duncan against Vance Drilling Company and another to recover for the death of plaintiff's husband, resulting from injuries caused by being struck by defendant's automobile. From a judgment for defendant, plaintiff appeals.

Judgment affirmed.

O. A Cargill, Howard K. Berry, and O. A. Cargill, Jr., all of Oklahoma City, for plaintiff in error.

Ames Monnet, Hayes & Brown, of Oklahoma City, for defendants in error.

OSBORN Justice.

This action was instituted in the District Court of Oklahoma County by Mary Duncan, hereinafter referred to as plaintiff, against the Vance Drilling Company, a corporation, and Rex Beauford Thomas, an employee of said corporation, wherein the plaintiff, as the surviving wife and next of kin of Elijah W. Duncan, deceased, sought recovery of damages for his wrongful death. Issues were joined, the cause was tried to a jury and a verdict was entered in favor of defendants. From a judgment on the verdict, plaintiff has appealed.

The record discloses that the decedent lived with plaintiff approximately eight miles east of Oklahoma City on a paved highway which is an extension of Southeast 29th Street; that the decedent was a man approximately 72 years of age. On the night of June 19, 1940, at about 10:00 o'clock P.M., he was returning to his home from the residence of one Guy Attebury, a nephew of decedent, who lived a short distance east of the residence of decedent. It appears that decedent was walking westward along the highway, defendant Rex Beauford Thomas approached from the east driving a Lincoln Zephyr automobile and about the same time one Joe Dodril approached from the west driving a Ford automobile with a trailer attached. From the testimony of defendant Thomas it appears that the glare of the headlights of the approaching Ford automobile prevented his seeing the decedent until he was within 20 feet of decedent; that he turned to the left but was unable to avoid striking decedent. The right front door handle of the Lincoln Zephyr automobile was bent backward indicating the manner in which the car struck decedent. It appears that both parties stopped and that decedent was immediately removed to a hospital where he died about two hours later.

The issues raised by the pleadings and submitted to the jury were, negligence, contributory negligence and unavoidable accident.

As grounds for reversal it is urged, first, that defendant's counsel made certain improper and prejudicial argument to the jury. This assignment of error is not properly presented. It is a well established rule in this jurisdiction that prejudicial remarks of counsel in argument to the jury are not available as a ground for reversal unless objected to and exception taken at the time such remarks were made, and the remarks as well as the objections and exceptions thereto must be shown in the record of the proceedings of the trial; that the objection is too late if made for the first time in the motion for new trial or by affidavit of opposing counsel. West-gate Oil Co. v. McAbee, 181 Okl. 487, 74 P.2d 1150; Seran v. Rose, 93 Okl. 192, 219 P. 940; First Natl. Bank v. Cox, 83 Okl. 1, 200 P. 238. The failure of plaintiff to comply with the rule of presentation of the proposition for reversal precludes a review of the same by this court.

As a second proposition it is urged that the trial court improperly instructed the jury on contributory negligence. The instruction complained of is as follows: "You are further advised that it was the duty of plaintiff's decedent at the time and place mentioned in the petition here to exercise reasonable care and caution for his own safety and if he failed to do so he would be guilty of negligence and if that negligence caused or contributed to his own injury then the plaintiff in this case would not be entitled to recover here; therefore, it is claimed by the defendants in this case that the decedent was guilty of negligence in that he walked down the travelled portion of this highway with his back towards approaching cars and thereby failed to exercise reasonable care and caution for his own safety. Now, if you find from the evidence in this case that plaintiff's decedent committed the acts charged and was thereby guilty of negligence, and that that negligence contributed to his own injury, that is, aided and assisted in bringing about the collision complained of, then and in that event the plaintiff in this case would not be entitled to recover and you should so say by your verdict; however, this plea of contributory negligence is an...