Green v. Sellers

• Decision Date: 05 April 1966
• Docket Number: No. 41039,41039
• Citation: 413 P.2d 522
• Parties: Wilbur R. GREEN, Ralph Jennings, d/b/a Ralph Jennings Feed Co., and James Hobart Kinder, Plaintiffs in Error, v. Donald L. SELLERS, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 522

413 P.2d 522

1966 OK 65

Wilbur R. GREEN, Ralph Jennings, d/b/a Ralph Jennings Feed

Co., and James Hobart Kinder, Plaintiffs in Error, v. Donald L. SELLERS, Defendant in Error.

No. 41039.

Supreme Court of Oklahoma.

April 5, 1966.

Syllabus by the Court

1. Where several causes producing an injury are concurrent and each is an efficient proximate cause, without which injury would not have occurred, the injury may be attributed to any or all of such causes.

2. The proximate cause of an injury is an act or omission which immediately causes or fails to prevent injury, in other words, it is an act or omission occurring or concurring with another, in the absence of which the injury would not have resulted.

3. A defendant cannot escape responsibility for negligence in operating an automobile by merely showing that another, sued as a joint tort-feasor with him, was also responsible.

Appeal from District Court of Muskogee County; C. F. Bliss, Jr., Judge.

Negligence action against joint defendants to recover damages for personal injuries. From judgment entered upon a jury verdict in plaintiff's favor defendants appeal. Affirmed.

Rucker, Tabor, Shepherd & Palmer, B. W. Tabor, O. H. 'Pat' O'Neal, Tulsa, for plaintiffs in error.

Garrett & Pearson, Muskogee, for defendant in error.

BERRY, Justice.

This is a negligence action. Plaintiff, defendant in error herein, sued the named defendants, plaintiffs in error in this appeal, to recover damages for personal injuries, pain and suffering, loss of wages and attendant medical expenses received under circumstances hereafter related. Upon trial to a jury the issues were found in plaintiff's favor against all defendants and the sum of $25,000.00 assessed as damages. The judgment rendered upon the jury verdict is the basis of this appeal by all defendants except Kinder.

The appeal presents no issues relative to the nature and extent of plaintiff's injuries or the damages allowed, and these matters do not require further mention. The terminal question involves the problem of legal cause in actions for tort. Depiction of the physical scene with particularity will assist consideration of the problem.

East of the town of Keefton in Muskogee County U.S. Highway 64 traverses the country side in a generally Northwest to Southeast direction toward Warner, Oklahoma. As in the testimony, however, directions ordinarily are denominated as 'north' and 'south.' Approximately one mile east of Keefton the highway passes over a small hill. The pavement is 20 feet wide, divided by a center line and a yellow painted line indicates a 'no passing' zone on both sides of the hill. When traveling southeast the hill inclines for approximately 1000 feet before reaching the top. When traveling northwest, toward Keefton, the hill is of sufficient highth to obstruct the view of Keefton and approaching traffic until near crest. There is an improved shoulder approximately 10--12 feet wide on each side of the pavement as the highway goes over the hill. Although not a steep hill, the rise is sufficient to obscure a view of traffic approaching from the opposite direction until a driver is nearly to the crest.

The defendant Green admittedly was the agent of defendant Jennings. Shortly after 4 P.M. in broad daylight, on January 4, 1962, Green was driving in a southeasterly direction a G.M.C. truck pulling a semitrailer heavily loaded (approximately 20,000 pounds) with grain. Since leaving Muskogee the truck's engine had been 'cutting out.' As Green came to the hill he was aware of two vehicles following behind his truck, and was uncertain whether his rig could ascend the hill. The truck was traveling 5--6 miles per hour at this time and it would have been possible to pull the truck onto the shoulder. Defendant considered this unnecessary, but when within 150--300 feet of the hill crest the truck came to a complete stop. At approximately the same time the two following vehicles came up behind Green. One car passed Green on the right by turning onto the shoulder. The other vehicle, driven by defendant Kinder, pulled around the truck to the left in the 'no passing' zone. At this time Green observed a pickup truck coming from the opposite direction over the crest of the hill some 300 feet away and, according to his testimony, he stopped the truck and the motor died. Other evidence, which the jury believed, was that defendant Green's truck had been stopped in the south bound traffic lane for from 5--10 minutes. There was no evidence of defendant having given or put out any warning signs or signals warning traffic approaching from the rear.

A pickup truck, driven by Holmes and carrying one McBride and the plaintiff as coemployees and passengers, was traveling north to Muskogee. Reaching the crest of the hill Holmes observed defendant Green's truck stopped, and defendant Kinder's vehicle about even with the truck but traveling south (east) in Holmes' north (west) bound traffic lane. Holmes applied his brakes, leaving 108 feet of light skid marks, but saw he would be unable to stop and thereupon turned right onto the shoulder and into the borrow ditch. Upon striking the ditch embankment the pickup truck overturned into the adjoining field. Plaintiff was thrown from the truck, which thereafter rolled over his body and caused severe injuries.

The plaintiff charged defendants Green and Jennings with negligence: (1) in stopping the truck upon the public highway and blocking southbound (southeast) traffic; (2) failure to put out flares or other warning devices; (3) failure to keep truck in proper mechanical condition; (4) defendants knew or in exercise of ordinary care should have known mechanical condition of truck would cause injury to travelers upon public thoroughfare.

Defendant Kinder was charged with negligence in (1) recklessly driving his vehicle across the center line into face of approaching traffic; (2) failure to keep his vehicle under control and operating same at a speed greater than permitted stopping in assured, clear distance ahead; (3) driving at greater speed than reasonable and proper under the circumstances; (4) driving without proper lookout without regard for plaintiff's rights or safety.

All defendants were charged with negligence in failing to maintain proper care and control of their vehicles upon the public highways as reasonably prudent persons would have done under like circumstances. The petition also alleged the various acts of negligence charged were contrary to and in violation of the statutes of this State.

Defendants' Green and Jennings answer, admitting existence of the agency relationship and occurrence of the accident, pled general denial, sudden emergency, unavoidable accident, and contributory negligence. Defendants further pled the accident was proximately caused by negligence of plaintiff, the driver Hurley and defendant Kinder, charging plaintiff with negligence in failing to warn Hurley of approaching danger created by Kinder's vehicle, and in failing to keep a proper lookout under the circumstances.

Holmes was alleged to have been negligent in failing to maintain proper control of his vehicle, and operating same in a reckless manner in violation of the statutes; exceeding lawful speed under existing conditions in violation of statutes; leaving shoulder of the highway when he knew, or should have known, accident could have been prevented, by remaining on his right side of the highway.

Defendant Kinder was alleged to have been negligent in driving to the left of center of the highway in meeting oncoming traffic; failure to provide half the traveled portion of the highway for oncoming traffic; driving to the left of center of the highway in passing at the crest of the hill; driving left of center of the highway within a marked, no passing zone, all in violation of various statutes (47 O.S.1961 § 11--302 et seq.) specifically pled. Further, that Kinder was negligent in driving at excessive speed and in a reckless and careless manner.

Defendant Kinder answered denying negligence upon his own part under the circumstances, and that the accident resulted from Green's negligence in failing to park off the traveled highway, and to give proper warning to other vehicles. This answer also alleged plaintiff's contributory negligence in failure to object to the manner in which the vehicle in which he was a passenger was being driven.

The evidence introduced by the various defendants at the trial conflicted in several respects with that offered by plaintiff. The highway patrolman (Fewell), who investigated the accident, arrived at the scene some 25--35 minutes after the accident, found the pickup overturned to the north (northwest) of the highway. The truck-trailer was parked on the highway headed south (southeast), some 150--300 feet from the crest of the hill, and the patrolman was advised by defendant Green the truck had 'quit' some 5--10 minutes before the accident. There were no warning flags at the scene. The pickup truck left 108 feet of light skid marks before leaving the pavement, traveled 120 feet along the shoulder and borrow ditch, went into a meadow and made one 'complete roll.' Defendant Kinder told the patrolman the truck was stopped on the road and a car he was following passed the truck on the right while Kinder went around the truck on the left.

Cross-examination established that the truck was on the right side of the highway. The north (northwest) traffic lane was clear, and the accident occurred in a 'no passing' zone. Defendant's truck would not start and later it was necessary for it to be pulled off the highway.

The operator of the pickup (Holmes), in which plaintiff was a passenger, was driving approximately 60 miles per hour coming up the hill. Upon cresting the hill he observed defendant's truck in the proper traffic lane and defendant Kinder's vehicle in Holmes' lane (north). Holmes tried to stop, but was unable to do so and left the...