Hayward v. Ginn
| Decision Date | 22 January 1957 |
| Docket Number | No. 36508,36508 |
| Citation | 306 P.2d 320 |
| Parties | Eva Amanda HAYWARD, Plaintiff in Error, v. James GINN, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Instructions defining a statutory duty and denominating the violation thereof as negligence per se, when considered in connection with other instructions properly given that set forth plaintiff's liability without regard to the question of proximate cause between the statutory violation alleged and the injury occurring, if error, were only harmless error under 12 O.S.1951 § 78.
2. An instruction on the issue of unavoidable accident, unsupported by the evidence, is error, but where, from an examination of the entire record, it does not appear that the erroneous instruction resulted in a miscarriage of justice or deprived the plaintiff of a constitutional or statutory right under 12 O.S.1951 § 78, this court will not reverse the judgment of the trial court based on the verdict of the jury.
3. Moving picture photographs, where proven to be a true and correct representation of whatever they purport to reproduce, are admissible in evidence.
4. In a negligence action, this court will not overturn a verdict of a jury, and a judgment in accordance therewith, where the evidence reasonably tends to support the verdict.
Appeal from The District Court of Ottawa County; William Thomas, Judge.
Action by Eva Amanda Hayward, as plaintiff, against James Ginn, as defendant, for personal injuries sustained as the result of defendants alleged negligence in the operation of his automobile. Verdict and judgment for defendant. Plaintiff appeals. Affirmed.
Bruner, Resler & Matuska, by Sylvan Bruner, Pittsburg, Nesbitt & Nesbitt, by Frank Nesbitt, Miami, for plaintiff in error.
Rucker, Tabor & Cox, Thomas L. Palmer, Tulsa, for defendant in error.
The parties are referred to as they appeared in the trial court.
This action arose from an automobile collision at intersection of U. S. Highway 166 and a county road approximately three miles east of Baxter Springs, Kansas, and within that state. On September 16, 1952, the plaintiff's car was proceeding east along said highway, as was the car of the defendant. Plaintiff alleges in her petition that she was operating her automobile, but this is denied by the defendant, who alleges that plaintiff's daughter was the driver. At the intersection mentioned, the two automobiles collided by defendant's car hitting plaintiff's car from the rear. The plaintiff's allegation is that she was attempting to turn on to the county road and had given a proper signal of her intention and that the defendant negligently and in violation of certain statutes ran into her car from the rear. The defendant's allegation is that the plaintiff negligently gave a variety of signals and then stopped in the middle of the road without any warning and in violation of certain statutes. The defendant filed a cross-petition based on the alleged negligence of the plaintiff in knowingly permitting her daughter, Mary Grube, a minor under eighteen years of age and not authorized to operate a motor vehicle, to drive plaintiff's car at the time of the collision. Also alleged was that the plaintiff was contributorily negligent, that the accident was unavoidable, and that Mary Grube was the agent of the plaintiff. Plaintiff filed a reply denying these allegations. Both parties pleaded certain statutes of the State of Kansas. Those material to this decision are G.S.Kan.1949, 8-263, which forbids a person from knowingly permitting his child under eighteen to drive when not authorized under the provisions of the uniform license act, and G.S.Kan.1949, 8-264, which forbids any person from knowingly permitting a motor vehicle owned by him or under his control to be driven by any person not licensed.
On the issues thus pleaded, the case was tried to the jury in December, 1953, which returned a verdict for the defendant. Only those questions argued in the briefs are treated in this opinion, the others noted on the petition in error being deemed waived. Chicago, Rock Island & Pacific Ry. Co. v. State, 203 Okl. 659, 225 P.2d 363. Furthermore no question of a conflict between the law of this forum and that of the State of Kansas has been presented.
Plaintiff argues that the giving of Instructions Nos. 14, 15 and 16 was error. Instructions Nos. 14 and 15 were only a statement by the court of the language of the statutes heretofore noted. Instruction No. 16 was that it is the duty of a person operating a motor vehicle to observe the law with reference to the operation thereof as given by the court in Instructions Nos. 8 to 15 inclusive, and any violation of said law was negligence per se. The instruction pointed out, however, that it must appear that such negligence per se was the proximate cause of the injury.
The testimony concerning who was actually operating the plaintiff's car at the time of the collision was conflicting. The plaintiff and her daughter testified that plaintiff was driving. Defendant and the only other witness to the collision testified that Mary Grube was driving. Mary Grube admitted in her testimony that she had no driver's license at the time of the collision and that she was only sixteen years of age at the time of the trial. Her mother confirmed her age, but testified: 'I don't know what she had' in response to a question concerning whether or not Mary had a driver's license. Mary also testified that she had a 'permit' but there is nothing in the evidence to show the nature of this permit and whether or not it authorized her to drive under these circumstances.
There was nothing improper in the court's instructions Nos. 14 and 15, for they were but quotations of the applicable statutes concerning the defendant's theory as pleaded in a cross-petition and as introduced in evidence. They were similar in form to the court's instructions upon the statutes applicable to the plaintiff's theory of the case, and they were all grouped together in the instructions. Instruction No. 16 was applicable, by its terms, to all those instructions enunciating the statutes pleaded and therefore applied to the plaintiff's and defendant's theories of the case. The inclusion of Instructions 14 and 15 within those instructions, a violation of which was denominated negligence per se by Instruction No. 16, if error, which we do not concede, was only harmless error in view of Instruction No. 20. The plaintiff conceded in her reply brief that Instruction No. 20 was appropriate, and we agree, defining, as it did, an explicit liability of the plaintiff. 47 O.S.1951 § 308; G.S.Kansas 1949, 8-222. Instruction No. 20 provided in part that:
'Any person as...
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Handy v. City of Lawton, 74064
...210, 212 (1959); Huey v. Stephens, Okl., 275 P.2d 254, 257 (1954). Huey was overruled on a different point of law in Hayward v. Ginn, Okl., 306 P.2d 320, 324 (1957).2 "Remittitur" means judicial reduction of the verdict voluntarily accepted by the plaintiff as an alternative to new trial. S......
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Lyndes v. Scofield, 14398
...in that area." Lyndes' reliance of the case of Huey v. Stephens (Okla.1954), 275 P.2d 254, overruled on other grounds, Hayward v. Ginn (Okla.1957), 306 P.2d 320, is misplaced. The Oklahoma Court recognized that the presence of ice on a road may lead to an accident with no negligence on the ......
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McMiddleton v. Otis Elevator Co.
...Mich.App. 447, 451-452, 304 N.W.2d 600 (1981).6 Mathias v. Baltimore & O R Co, 93 Ill.App.2d 258, 236 N.E.2d 331 (1968); Hayward v. Ginn, 306 P.2d 320 (Okla., 1957); Barham v. Nowell, 243 Miss. 441, 138 So.2d 493 (1962). See also 29 Am.Jur.2d, Evidence, Sec. 801, pp. 883-886; 62 A.L.R.2d 68......
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Palmer v. Krueger
...had no control, or could not, except by the exercise of exceptional foresight, have predicted." Id. at 154 (quoting Hayward v. Ginn, 306 P.2d 320, 323-24 (Okla.1957)). Palmer points out that in its order denying a new trial the district court relied on the state court of appeals' opinion in......