Helmerich & Payne, Inc. v. Nunley

• Decision Date: 04 June 1935
• Docket Number: Case Number: 25488
• Citation: 1935 OK 633,176 Okla. 246,54 P.2d 1088
• Parties: HELMERICH & PAYNE, Inc. v. NUNLEY
• Court: Oklahoma Supreme Court

1935 OK 633

54 P.2d 1088

176 Okla. 246

HELMERICH & PAYNE, Inc. v. NUNLEY

Case Number: 25488

Supreme Court of Oklahoma

Decided: June 4, 1935

Syllabus

¶0 1. Automobiles - Statutory Limit on Width of Motor Vehicles and Loads on Highways.

Section 10316, O. S. 1931, is applicable alike to classified carriers which are operated under permit from the Corporation Commission as common carriers, and to all motor or power vehicles operated for private use; and 90 inches is the maximum width of motor vehicles, except traction engines, allowed by law to be operated upon any public highway of this state, and 90 inches is also the maximum width of any load which may be transported on any public highway of this state without a special permit from proper authority.

2. Appeal and Error - Harmless Error - Statute.

Under section 3206, O. S. 1931, no judgment shall be set aside or a new trial granted on the ground of misdirection of the jury or the improper admission or rejection of evidence or as to any error in the pleadings or procedure, unless in the opinion of the court, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.

3. Trial - Sufficiency of Instructions - Refusal of Requests.

Refusing requested instructions is not error where instructions given fully and fairly state the law applicable to the case and are not contradictory.

4. Appeal and Error - Harmless Error in Instructions.

Where the evidence falls to show contributory negligence, an erroneous instruction on the question of contributory negligence is harmless and the defendant has no cause to complain of same.

5. Same - Sufficieney of Instructions in Entirety.

Where the instructions, when considered as a whole, correctly state the law and fairly submit the issues to the jury arising upon the proof, there is no reversible error.

6. Appeal and Error - Reversal for Improper Argument not Justified Where Provoked by Opposing Counsel.

Improper language used in argument is not ground for reversal where such language is provoked by the remarks of counsel for the adverse party, unless it appears quite plainly that the verdict was influenced thereby. Moreover, the rule applies although the language used would clearly authorize a reversal in the absence of such provocation.

7. Appeal and Error - Erroneous Instruction Favorable to Appellant.

The giving of an erroneous instruction which is more favorable to the plaintiff in error than to the defendant in error will not constitute error which demands a reversal of the judgment.

Appeal from District Court, Oklahoma County; Geo. A. Henshaw, Judge.

Action by Cecil Nunley, a minor, by A.M. Nunley, his father against Helmerich & Payne, Inc. Judgment for plaintiff and defendant appeals. Affirmed.

Warren K. Snyder and Jarman & Brown, for plaintiff in error.

Morrison, Morrison & Morrison and D.D. Jennings, for defendant in error.

CORN, J.

¶1 This is an action brought by Cecil Nunley, a minor, by A.M. Nunley, his father and next friend, as plaintiff, against Helmerich & Payne, Inc., a corporation, as defendant, in the district court of Oklahoma county, to recover damages for personal injuries which plaintiff claims he received by and through the negligence of the defendant's agent, servant, and employee in the operation of an automobile truck on the 1st day of March, 1933. The trial of the cause resulted in a verdict of the jury and a judgment of the court thereon for the plaintiff in the sum of $7,500, and the defendant appealed the cause to this court for a reversal of said judgment. For convenience the parties plaintiff and defendant will be referred to herein as they appeared in the court below.

¶2 Plaintiff alleges that he was struck and seriously injured by a heavy timber projecting about two feet over the side of defendant's truck as he was walking along the south side of the pavement and about one or two feet off the edge thereof, and was overtaken and passed by the truck at a point in the 1500 block on Southeast 29th street in Oklahoma City, at about 10:30 o'clock at night on said 1st day of March, 1933; that the projecting timber struck the back of his head and shoulders causing a basal fracture of the skull and a serious injury to the brain, and that by reason of said injuries he was totally and permanently disabled from the performance of labor; that at the time of his injury he was 14 years of age; and claimed damages in the sum of $42,500. Defendant answered by a general denial, and as a defense charged contributory negligence on the part of the plaintiff.

¶3 The defendant argues its various assignments of error under seven propositions, which will be considered in the order set forth in its brief.

¶4 First proposition: The court committed prejudicial error in giving its instruction No. 12 to the jury: (1) The statute upon which the instruction is predicated has no application to the truck operated as defendant operated trucks at the time of the alleged injury. (2) Even though the statute upon which the instruction is predicated applied to the defendant's truck, as operated, there is neither such allegation in the plaintiff's petition nor evidence submitted at the trial that would authorize such instruction.

¶5 Instruction No. 12, given at the request of plaintiff and duly excepted to by the defendant, is as follows:

"You are instructed by the laws of the state of Oklahoma that a freight carrying motor vehicle using the highways is not permitted or allowed to have its load, or any part thereof, project more than six inches beyond the running board of such vehicle, and that if said defendant violated this rule it is negligence as a matter of law, and if you find from the evidence that the defendant was negligent in this respect and that such negligence was a proximate cause of the injuries, if any, which the plaintiff, Cecil Nunley, sustained, then your verdict should be for the plaintiff, unless you find for the defendant under other instructions given you."

¶6 Second proposition: The court committed error in giving its instruction No. 11 to the jury.

¶7 We will consider the first and second propositions together, as they relate to instructions predicated upon similar statutes and upon the same allegations and the same evidence. Instruction No. 11, given at the request of plaintiff and excepted to by defendant, is as follows:

"You are further instructed that the statutes of this state provide that 'no motor or other power vehicle or object may be moved on any public highway of a greater width than ninety (90) inches.'

"And you are instructed that the driving or operation of a motor vehicle in violation of the foregoing statute would be negligence."

¶8 Paragraph 3 of plaintiff's petition is as follows:

"(3) That on said 1st day of March, 1933, at about the hour of 10:30 p. m., on said day, this plaintiff was walking east on the south side of and about one or two feet south of the south edge of the pavement in the 1500 block on S.E. 29th street in Oklahoma City, and when reaching said point, and while walking in an easterly direction off of the pavement on the south side of said street, said plaintiff was negligently and carelessly struck and seriously injured by an automobile of the said defendant; the said automobile, at the time of said plaintiff's injury, was being driven by defendant's employee in the course of his employment in an easterly direction; that the said automobile had loaded on the bed thereof two large pieces of timber, said automobile and load being more than 90 inches wide, and one of said pieces of timber being a 12" x 12" pine timber and said timber was protruding south from the south edge of the bed of said truck about two feet; that when said truck, as aforesaid, was passing this said plaintiff who was off of the pavement to the south at said time, said plaintiff was negligently and carelessly struck in the back of the head and shoulders by the said large timber which was protruding south off of the bed of defendant's truck; that on being struck by the large piece of timber, this plaintiff was seriously and permanently injured, all of which will be hereinafter specifically set out."

¶9 Paragraph 5 of plaintiffs petition, detailing the nature of the injuries alleged to have been sustained by the plaintiff, is as follows:

"(5) Plaintiff alleges that as a result of the carelessness and negligence of the above said defendant, as hereinbefore stated, he has suffered permanent and serious bodily injuries as follows:

"Plaintiff received basal fracture of the skull and a serious and resulting injury to the brain, compression of the brain by hemorrhage, serious injury to the upper portion of the spinal column, fracture of the middle cranial fossa rupture of the tympanum, and resulting loss of hearing in the left ear, a partial paralysis of the lower extremities; that said plaintiff was injured internally, the exact nature of said internal injury being unknown to plaintiff; that by reason of the aforesaid injuries this plaintiff has been totally and permanently disabled from the performance of labor; that plaintiff's age at the time of said injury was 14 years; that by reason of the aforesaid injuries this plaintiff has suffered severe pain, both mental and physical, and will continue to suffer such severe pain in the future."

¶10 Apparently instruction No. 12 is predicated upon section 3698, O. S. 1931, which provides in subdivision "d" of said section that:

"On freight carrying motor carrier units, no part of the load shall be allowed to project more than six inches beyond the running board of said motor vehicle, or measure more than eight feet wide over all."

¶11 This section of the statute applies to motor vehicles operated upon the highways for hire which are classified as class "A", class "B", and class "C" motor carriers, and which are subject to...