Greenlease-Ledterman, Inc. v. Hawkins

• Court: Oklahoma Supreme Court
• Writing for the Court: ARNOLD, Justice.
• Citation: Greenlease-Ledterman, Inc. v. Hawkins, 186 P.2d 318, 199 Okla. 331, 1947 OK 323 (Okla. 1947)
• Decision Date: 28 October 1947
• Docket Number: 32728.
• Parties: GREENLEASE-LEDTERMAN, Inc. et al. v. HAWKINS.

186 P.2d 318

199 Okla. 331, 1947 OK 323

GREENLEASE-LEDTERMAN, Inc. et al. v. HAWKINS.

No. 32728.

Supreme Court of Oklahoma

October 28, 1947

Appeal from District Court, Tulsa County; Harry L. S. Halley, Judge.

Suit by Buddy Hawkins, an infant, by his father and next friend against Greenlease-Ledterman, Inc., and another to recover damages for personal injuries sustained by plaintiff in collision between motor scooter on which he was riding and automobile. Verdict and judgment for plaintiff, and defendants appeal.

Judgment modified and affirmed on condition that remittitur be filed otherwise reversed and cause remanded for new trial.

CORN J., dissenting.

Syllabus by the Court.

1. Where the language of a statute or ordinance is plain and unambiguous and its meaning clear and no occasion exists for the application of rules of construction, the statute will be accorded the meaning as expressed by the language therein employed.

2. Where there is a recovery in an amount sufficient to convince the court that the same is excessive, this court will require a remittitur and if same is not filed the cause will be reversed and remanded for new trial.

A. M. Covington, of Tulsa, for plaintiffs in error.

Hughey Baker, of Tulsa, for defendant in error.

ARNOLD Justice.

Buddy Hawkins, an infant, by his father and next friend, sued Greenlease-Ledterman, Inc., a corporation, and Israel Gray, for personal injuries.

The pleadings and evidence disclose that on September 7, 1945, plaintiff, who was a student in the Horace-Mann School in the city of Tulsa, together with another student in that school, J. W. Peevy, were riding west on 11th Street in said city on a motor scooter. The motor scooter belonged to Peevy and plaintiff was riding thereon at the invitation of Peevy, both boys being on the single seat of said scooter, Peevy being in front and plaintiff sitting immediately behind him and holding to the body of the driver with his feet resting on the lower part of the frame of said machine. Defendant corporation operated a garage and sales room on the north side of 11th Street in the block immediately west of Boston Avenue. The service entrance of the garage was near the west end of the building in which the garage was operated and as these boys on the motor scooter approached a point on the street opposite this service entrance a car was being backed out of the garage onto the street, the driver being the defendant, Israel Gray, an employee of the company. Cars were parked along the curb in front of the garage building at a 45 degree angle. At the point opposite the service entrance the scooter on which the boys were riding and the car which was being backed out of the garage collided, the exact manner in which the collision occurred being in dispute. Plaintiff's evidence is to the effect that the car was backed out of the service entrance rapidly and collided with the scooter, while defendants' evidence tended to show that the car had stopped at a point where its rear and was about even with the rear end of the cars parked against the curb and that the scooter was driven into and against the rear end of the car while standing still. It is undisputed, however, that the right leg of plaintiff came into contact with the exhaust pipe at the rear of this car and he was thrown violently to the pavement. The Peevy boy and his motor scooter were not seriously injured, but plaintiff received two fractures of his right leg, one just above the ankle which broke both bones, and the other just below the knee which also broke both bones. Plaintiff was confined to a hospital for some fifteen days and at the time of the trial, some three months after the accident, his leg was not completely healed. The testimony indicates that these injuries may have permanent disabling results.

In his petition plaintiff alleged several grounds of negligence on the part of defendants as being responsible for his injuries. Defendants in their answer denied their negligence and affirmatively pleaded contributory negligence on the part of plaintiff. The trial of the case resulted in a verdict in favor of plaintiff for the sum of $12,500 on which judgment was rendered and this appeal resulted.

The parties will be herein referred to as they appeared in the trial court.

For reversal of the judgment reliance is placed on three propositions thus stated in the brief of defendants:

'Error of the court in failing and refusing to permit the introduction of the City Ordinance offered by the defendants.

'Error of the court in failing and refusing to permit the introduction of evidence to establish notice and knowledge of the plaintiff of the danger in connection with his method of riding on the motor scooter.

'The verdict was the result of passion and prejudice and is excessive.' We think the correctness of defendants' first proposition must be denied.

In their answer defendants alleged that plaintiff was guilty of contributory negligence precluding recovery. Upon the trial of the cause defendants offered in evidence Section 180 of Title 28 of the Revised Ordinances of the City of Tulsa, which section reads:

'The operator of a motorcycle or bicycle when upon a street shall not carry any other person upon the handle bar, frame, or tank of any such vehicle nor shall any person so ride upon any such vehicle.'

Upon objection thereto by plaintiff the court excluded the offered ordinance.

The manner in which plaintiff and his companion, Peevy, were riding the motor scooter, their positions thereon and the manner of its operation by Peevy were fully explained and described to the jury by witnesses and after being so advised by the testimony the jury at defendants' request was permitted by the court, in charge of the baliff, to examine and inspect the motor scooter. By this inspection the jury was able to determine whether the seat on the motor scooter was large enough to accommodate two 13 year old boys and whether...