Fairmont Creamery Co. v. Rogers, Case Number: 30014
| Citation | 116 P.2d 983,189 Okla. 320,1941 OK 246 |
| Decision Date | 22 July 1941 |
| Docket Number | Case Number: 30014 |
| Parties | FAIRMONT CREAMERY CO. et al. v. ROGERS |
| Court | Supreme Court of Oklahoma |
¶0 1. NEGLIGENCE -Sufficiency of plaintiff's evidence to withstand defendant's motion for directed verdict.
In an action to recover damages for injuries allegedly resulting from a defendant's negligence, the trial court is warranted in refusing to direct a verdict for said defendant as against the latter's contention that no causal connection between the injuries and said negligence was established, where from the evidence favorable to the plaintiff, together with the inferences to be reasonably drawn therefrom, it appears more probable that the injury came in whole or in part from said defendant's negligence than from any other cause.
2. SAME--AUTOMOBILES--Action against owner and driver of truck for wrongful death of motorist-Evidence of truck owner's negligence.
In an action against the owner and the driver of a truck, for the wrongful death of a motorist who died from injuries received in a collision with said truck, evidence examined, and held sufficient to warrant submission of the cause to the jury for a determination of whether or not said injuries were caused by the defendant owner's negligence.
3. APPEAL AND ERROR--Harmless error--Instructions allowing jury in determining liability of one defendant to consider evidence competent only as to other defendant held not ground for reversing judgment against both where verdict against complaining defendant was sufficiently supported by competent evidence.
Instructions alleged to be erroneous on the ground that they allowed the jury, in determining the liability of one of the defendants, to consider evidence that was competent only as to the other defendant, held not ground for reversing a judgment in accord with the verdict against both of the defendants to said action where said verdict as to the complaining defendant was sufficiently supported by competent evidence and it did not appear that the giving of said instructions constituted a substantial violation of said defendant's constitutional or statutory rights or probably resulted in a miscarriage of justice.
Appeal from District Court, Oklahoma County; Frank P. Douglass, Judge.
Action by Myrtle Rogers against the Fairmont Creamery Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.
Flansburg & Flansburg, of Lincoln, Neb., and Twyford & Smith and William J. Crowe, of Oklahoma City, for plaintiffs in error.
Gomer Smith, Herbert K. Hyde, and Nelson Rosen, all of Oklahoma City, for defendant in error.
¶1 This is the second time this cause has been before this court on appeal. See Blair et al. v. Rogers, 185 Okla. 63, 89 P.2d 928. It was originally commenced in May, 1933, by the defendant in error, as plaintiff, to recover damages against the plaintiffs in error, as defendants, for the allegedly wrongful death of the former's husband, S. A. Rogers, who died from injuries received in an automobile accident.
¶2 In the interest of clarity and brevity, the parties will hereinafter be referred to as they appeared in the trial court.
¶3 The accident Occurred between 2:30 and 3 o'clock in the morning of March 5, 1933, when Rogers drove his car into and collided with the rear end of a truck of the "semi-trailer" type belonging to the defendant, Fairmont Creamery Company, and driven by its employee, M. P. Blair, on highway No. 77, between Oklahoma City and Edmond, Okla., at a point between three and four miles north of the State Capitol. Both vehicles were traveling north, and the weather has been described as "cold and rainy."
¶4 In so far as was shown at the trial, no one was present at the scene of the accident when it occurred except Rogers and Blair, the drivers of the two vehicles. The latter testified on behalf of himself and the defendant company. In the trial out of which this appeal arose, plaintiff made no attempt to establish her cause of action by statements said to have been made by her husband before his death, as she did in the former trial (Blair et al. v. Rogers, supra) nor to establish all of the allegations of her petition concerning the manner in which the accident occurred. However, to support her theory that her husband was unable to see the defendant company's truck in time to avoid driving his car into it and that it was defendants' negligence which caused the collision, she introduced evidence calculated to show that when it occurred said truck was stopped on the highway without a tail light or reflector thereon.
¶5 The verdict and judgment were in favor of the plaintiff.
¶6 In their present appeal defendants argue their assignments of error under five propositions. The first three of these deal with the alleged errors committed by the trial court in overruling a demurrer which the defendant, Fairmont Creamery Company, interposed to plaintiff's evidence, and in refusing to instruct the jury to return a verdict for said company as requested by it after all of the evidence had been introduced.
¶7 We will begin with a consideration of the second of these alleged errors, for, under the rule of appellate review adhered to by this court, if there is sufficient evidence in the record as a whole to warrant submission of the cause to the jury, any error in overruling the demurrer to plaintiff's evidence is immaterial. Martin v. McLain, 184 Okla. 418, 87 P.2d 1075; Stagner v. Files, 182 Okla. 475, 78 P.2d 418. And in determining this question we will consider only the evidence most favorable to the plaintiff, together with all of the reasonable inferences which may be drawn therefrom. See Maryland Casualty Co. v. De Armon, 179 Okla. 60, 64 P.2d 719; Starmer v. Mid-West Chevrolet Corporation, 175 Okla. 160, 51 P.2d 786; Board of Education of City of Bartlesville, Washington County, v. Montgomery, 177 Okla. 423, 60 P.2d 752; Highway Construction Company v. Shue, 173 Okla. 456, 49 P.2d 203; Allis Chalmers Co. v. Lamb, 174 Okla. 118, 49 P.2d 1071.
¶8 The plaintiff introduced no direct and positive proof as against the defendant, Fairmont Creamery Company, that at the time of the accident said company's truck was stopped. Other than testimony concerning certain admissions said to have been made after the collision, by the truck driver and defendant, Blair, that was introduced only as against him and evidence concerning the condition of the two automobiles after the accident, the only evidence in the record pertaining to this matter is the testimony of certain witnesses who claimed to have seen a truck stopped on the highway before the collision occurred. Upon the basis of the description given by these witnesses, of the truck and the time and place they said it was stopped, counsel for plaintiff evidently intended the jury to infer or conclude that the truck they saw was the defendant company's truck and that same was stopped at the time of the accident. One of said defendant's principal contentions in its argument concerning the evidence is that same is wholly insufficient on this phase of the case. If we find the evidence sufficient upon the issues of whether at the time of the collision the defendant company was operating its truck without a "rear red light" or reflector in violation of section 10331, O. S. 1931, 47 Okla. St. Ann. § 131, or section 10332, O. S. 1931, 47 Okla. St. Ann. § 132, and whether such negligence was the proximate cause of said collision, it is unnecessary to consider whether it was also negligent in stopping same in violation of rule 10 of section 10327, O. S. 1931, 69 Okla. St. Ann. § 583. Consequently, we will now consider only the evidence concerning the first two of these issues.
¶9 The testimony introduced on behalf of the plaintiff tended to show that there was no reflector of any description nor a taillight in operating condition on the rear end of the truck at the time of the collision. Three of her witnesses, W. E. Agee, E. E. Abernathy, and Paul Kerr, who claimed to have examined said truck for such a light or reflector soon after the accident, all agreed that it had a shell or piece of such a lamp on its right side but that said lamp had no reflecting lens and they testified to facts concerning the appearance of the socket that amply support the conclusion that there was no light bulb therein on the night of the accident. They all testified that there was no other lamp nor a reflector of any description on the back of the truck. When confronted with photographs introduced by the defendants as pictures of the rear end of the particular Fairmont Creamery Company truck that was involved in the accident, these witnesses indicated that same depicted the true condition of the license plate on the truck after the accident, but they positively denied that there was a tail light bent down under the floor of the truck near or attached to said license plate as portrayed in the picture. Upon cross-examination of A. F. Dickey, one of the defendant company's employees, whose duties consisted among other things of supervising repairs on its trucks, plaintiff's counsel elicited the information that the photographs described had not been taken until more than 24 hours after he had moved the truck to Guthrie, where said company's garage was located. From the foregoing, we believe it obvious without consideration of any other portions of the record that there was competent evidence introduced in support of plaintiff's theory that at the time the collision occurred the defendant company's truck had no taillight or reflector.
¶10 The only other matter necessary to consider with reference to the abovementioned assignment of error is the sufficiency of the evidence to establish such negligence as the proximate cause of the collision. In support of their argument that no causal connection was established between the defendants' negligence and the accident involved herein, defense counsel cite a...
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