Graybill v. Clancy

• Decision Date: 09 September 1930
• Docket Number: 19536.
• Citation: 291 P. 87,144 Okla. 237,1930 OK 367
• Parties: GRAYBILL et al. v. CLANCY.
• Court: Oklahoma Supreme Court

291 P. 87

144 Okla. 237, 1930 OK 367

GRAYBILL et al. v. CLANCY.

No. 19536.

Supreme Court of Oklahoma

September 9, 1930

Syllabus by the Court.

Instruction on last clear chance doctrine in action for injuries sustained when plaintiff's motorcycle collided with defendants' automobile held not warranted under evidence.

Evidence examined in this case, and held not to warrant the giving of an instruction to the jury on the rule of last clear chance.

Instruction on last clear chance doctrine in action for injuries sustained in collision between plaintiff's motorcycle and defendant's automobile held erroneous.

In an action for damages on account of the alleged negligent acts of the defendants, it is error for the court, in attempting to submit the law of last clear chance, to instruct the jury that the plaintiff may recover notwithstanding his contributory negligence if the defendants might, by the exercise of reasonable care and prudence, have avoided the consequences of the plaintiff's negligence; because such instruction omitted the essential element that plaintiff's peril must have been known to the defendants in time to have avoided the accident, and, as given, also tended to destroy the defense of contributory negligence.

Commissioners' Opinion, Division No. 1.

Appeal from District Court, Washington County; J. R. Charlton Judge.

Action by Charles W. Clancy against Mary Graybill and another to recover damages for personal injuries. Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

H. H Montgomery, of Bartlesville, and A. F. Moss, H. R. Young, and C. A. Warren, all of Tulsa, for plaintiffs in error.

Campbell & Ray, of Bartlesville, for defendant in error.

REID C.

The plaintiff got a judgment against the defendants for injuries received by him in a collision of plaintiff's motorcycle and an automobile belonging to the defendant Mary Graybill and driven by her daughter, Gertrude Graybill, for her mother at the time the accident occurred.

The accident occurred at the intersection of two streets in the city of Bartlesville, Okl., on June 12, 1922. The plaintiff was then a little more than 18 years old. This case was tried in December, 1927. The jury gave a verdict for $1,750; and the defendants admit in their brief that there is evidence sufficient to sustain the verdict, and complain only of other matters.

The first contention requiring discussion, made by the defendants, relates to instruction No. 11, which is as follows: "You are instructed that even if the defendants be shown to have been guilty of negligence, the plaintiff cannot recover, if he himself be shown to have been guilty of contributory negligence which may have had something to do in causing the accident, yet, the contributory negligence on his part will not exonerate the defendants and disentitle the plaintiff from recovering if it be shown that the defendants might, by the exercise of reasonable care and prudence, have avoided the consequences of the plaintiff's negligence."

It seems conceded by the parties that this instruction was intended to give to the jury what is known in negligence cases as the rule or doctrine of "last clear chance." Defendants say this was error, for the reasons (1) That plaintiff had no pleading and evidence presenting that theory of negligence by defendants; and (2) that the instruction in itself was not a correct charge on that proposition even if it had been called for by the evidence.

The plaintiff's evidence relating to the accident consisted of his own testimony and that of his brother who was riding behind him on the motorcycle, together with two other parties who saw the accident. The substance of all this evidence was to establish the allegations of the plaintiff's petition, that he was going north on Keeler avenue in the City of Bartlesville at a speed of 12 or 15 miles per hour; that defendants were coming south in an automobile on the same street; that the motorcycle and car arrived at the intersection of Seventh street and Keeler avenue at about the same time, plaintiff probably arriving there a little ahead; that, when defendants' car reached the intersection, instead of going around the middle thereof, as the driver was required to do by a city ordinance, she cut the corner, turning abruptly to the left into Seventh street without any warning of an intention to make a turn. Plaintiff said that, faced with this unexpected situation, he attempted to avoid the car by turning to the left, but was struck by or came into contact with the rear bumper of the car with his right leg, crushing it.

These witnesses further said that, when the accident happened, the automobile was close to the northeast corner of the intersection of the streets; and the witnesses for both parties seem to practically agree that it had partially passed beyond the east line of Keeler avenue into Seventh street. The evidence shows that each of these streets was 30 feet wide.

For the defendants, the driver of the car and her mother testified that they were driving south on Keeler avenue, and that, when they reached the intersection of Seventh street, the driver said she signaled her intention to turn, and they both said that she went around the middle of the intersection, and into Seventh street at a traveled place, or ruts, south of the middle of such street, and that their car was about halfway into the east line of Keeler avenue at the time it was struck. The daughter, and also another witness, testified that the plaintiff was traveling at about 30 or 35 miles per hour. The testimony of all the witnesses on the question showed that the automobile was going 12 or 15 miles per hour. There was other material evidence for both sides, but what we have detailed illustrates the material issues made by it.

The evidence on the whole presented the situation that if defendants cut the corner at the northeast intersection of the streets as claimed by plaintiff, and sustained by some of his evidence, they violated an ordinance of the city of Bartlesville; on the other hand, if plaintiff was traveling at the rate of speed shown by defendants' witnesses, he was violating an ordinance...