Elam v. Loyd
| Decision Date | 22 March 1949 |
| Docket Number | Case Number: 33330 |
| Citation | 204 P.2d 280,1949 OK 53,201 Okla. 222 |
| Parties | ELAM v. LOYD |
| Court | Oklahoma Supreme Court |
¶0 1. APPEAL AND ERROR - NEGLIGENCE - Conclusiveness of verdict on question of contributory negligence in personal injury case.
Contributory negligence is a question of fact for the jury and the court's judgment on verdict will not be disturbed on appeal where there is any competent evidence reasonably tending to support the same.
2. TRIAL - Where instructions as a whole present law applicable to issues, judgment on verdict of jury not disturbed.
When instructions, considered as a whole, fairly present law applicable to issues, a judgment on the verdict of the jury will not be disturbed.
Appeal from District Court, Washita County; Weldon Ferris, Judge.
Action for damages by N.B. Elam against John Loyd. From judgment for defendant, plaintiff appeals. Affirmed.
Carder & Carder, of Hobart, and Edwards & Edwards, of Cordell, for plaintiff in error.
Jones & Wesner and Ash & Bailey, all of Cordell, for defendant in error.
¶1 Plaintiff alleged in his petition that on the 30th day of June, 1944, in the nighttime, he was proceeding, in an International tractor, west on State Highway No. 51 between the towns of Rocky and Sentinel; that at the same time the defendant in an automobile was proceeding west on the same highway; that the defendant drove his automobile into plaintiff's tractor, inflicting damage upon the tractor and injury to the plaintiff. Plaintiff alleged that the collision was caused by the negligence of the defendant in one or all of the following particulars: (1) that at the time of the collision, the automobile being operated by defendant was being driven at a reckless and excessive rate of speed under all the facts and circumstances and at a speed in excess of 40 miles per hour; (2) that in violation of a rule of the road, the defendant, operating a vehicle overtaking the tractor of the plaintiff, did not keep to the left of the center of the road until entirely clear of the vehicle being passed; (3) that defendant carelessly, recklessly, and with gross disregard of the rights of the plaintiff drove his automobile against the tractor of the plaintiff, and by the exercise of reasonable care defendant could have avoided the collision, and (4) that defendant did not have his automobile in such condition and under such control that he could bring the same to a stop within the clear, sure distance ahead.
¶2 For answer, the defendant pleaded a general denial, and for further answer pleaded contributory negligence on the part of the plaintiff in that the plaintiff was operating his tractor in the center of the road and not to the right of the center of the road, and that plaintiff did not have a taillight on his tractor as required by law.
¶3 The reply of the plaintiff was a general denial.
¶4 The first proposition of the plaintiff is that the verdict is contrary to and in disregard of the evidence. Plaintiff contends that the facts going to the question of liability of the defendant are virtually undisputed and insists, therefore, that this is not a case of a general verdict on conflicting testimony, which would amount to the finding of the necessary facts to support the verdict, for the reason that there is no testimony of any weight raising an issue which will relieve the defendant from liability for the damage caused by his negligence. It may, for the purpose of argument, be conceded that the plaintiff has established without conflict the negligence of the defendant, but the defense of contributory negligence raised by the pleadings presents this issue for examination to determine whether there is evidence in this connection to support the judgment. There is evidence that the tail-light of the tractor was burning when plaintiff left Rocky, four and a half miles from the scene of the accident, and there is evidence that the taillight of plaintiff's tractor was burning a mile and a half from Rocky. Plaintiff testified that he knew the taillight was burning because of the reflection of the light on the tires, which extended behind the taillight. On the other hand, defendant testified that he did not see a taillight; that it was not burning when he drove upon the tractor.
¶5 We have often said that questions of negligence and of contributory negligence are questions of fact for the jury and the court's judgment thereon will not be disturbed on appeal...
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