Huey v. Stephens, 35956

• Decision Date: 13 July 1954
• Docket Number: No. 35956,35956
• Parties: H. T. HUEY, Plaintiff in Error, v. Sibyl Inez STEPHENS, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 254

275 P.2d 254

1954 OK 222

H. T. HUEY, Plaintiff in Error, v. Sibyl Inez STEPHENS, Defendant in Error.

No. 35956.

Supreme Court of Oklahoma.

July 13, 1954.

Rehearing Denied Sept. 14, 1954.

Application for Leave to File Second Petition for Rehearing

Denied Oct. 19, 1954.

Syllabus by the Court.

1. An 'unavoidable accident' is one which occurs while all persons concerned were exercising ordinary care, being one not caused by the fault of any of the persons, and if the accident could have been prevented by either person by means suggested by common prudence, it is not deemed unavoidable.

2. An instruction that the verdict should be for defendant if jury found collision was the result of an unavoidable accident where there was no evidence establishing the accident as 'unavoidable' was, as the present case was submitted, prejudicial error.

Dick Bell, Seminole, for plaintiff in error.

Cheek, Cheek & Cheek, Oklahoma City, for defendant in error.

BLACKBIRD, Justice.

Reference is made to the parties herein as they appeared in the trial court.

Plaintiff, H. T. Huey, sued defendant, Sibyl Inez Stephens, for damages resulting from an automobile accident. Upon trial of the case there was a general verdict in favor of defendant upon which judgment was entered, and plaintiff appeals.

Plaintiff's petition alleges, in substance, that on November 15, 1950, the defendant was driving her 1950 Dodge coach in a northwesterly direction on U. S. Highway 270 at a point about two miles northwest of Seminole, Oklahoma, in a dangerous and reckless manner; that plaintiff was driving a 1950 Chevrolet pickup at said point in a southeasterly direction in a lawful and prudent manner on his side of the pavement when suddenly and without warning defendant drove her car off the pavement to her right and, in attempting to get back on the pavement, she caused her car to swerve to the left and across the pavement on plaintiff's side of the highway, colliding with plaintiff's pickup with such force as to knock the pickup off the highway and inflict certain injuries upon plaintiff, for which he prayed judgment.

Defendant answered denying generally and severally all material allegations of plaintiff's petition, and charging plaintiff with contributory negligence. She also pleaded the last clear chance doctrine and unavoidable accident.

The evidence reveals that plaintiff was driving at a speed of around 40 miles per hour in a southeasterly direction and on his side of the road, and that defendant was driving at a speed of 45 or 50 miles per hour in a northwesterly direction along said highway which is paved with concrete slab. Just over the crest of a hill, the road made a slight turn to the right. Just below the crest, at the slight curve, there was a six inch deep rut along the edge of the pavement for a distance of approximately 80 feet. One of the right wheels of defendant's car dropped off the pavement into this rut and the car traveled about 65 feet and then cut back onto the pavement and across the highway into the side of plaintiff's truck. Defendant testified as follows:

'Q. The best you can recall, can you tell us to the best of your knowledge what happened? A. One of my wheels ran off of the pavement and there was a deep drop off. I completely lost control of the car. I tried to hold it and I just couldn't, and the car, I lost control, and it started spinning across the road.

'Q. How long were you off the road as far as you know? A. Well, I didn't think I was off the road but just a split second, it seemed to grab the wheel and jerk me back up on the road.

'Q. Just tell the jury what you did with your steering wheel the minute your wheel dropped off. A. Well, I tried to hold it steady, of course, but it just jerked out of my hand. It didn't really jerk out of my hand, but it jerked as the car ran back on the road. I didn't jerk it up on the road, but I just lost control.'

Plaintiff states, as grounds for reversal, that error was committed by the trial court in instructing the jury on 'unavoidable accident', it being his contention that the evidence did not warrant the giving of such instruction.

Though, as we have seen, defendant pleaded 'unavoidable accident' as one of her defenses, there was no evidence to support it. Her counsel seeks to place all of the blame for the accident on the condition of the road. They argue quite convincingly that she was not negligent in merely running off the concrete slab onto the shoulder, as the evidence shows other motorists had done many times before; and they seek to support her own conclusions by her testimony that after her car left the slab and dropped off into the rut in the shoulder along its edge, the car got 'out of control'. They apparently seek to leave the impression that there was nothing humanly possible she could have done to bring the car under control and avoid the accident in the 'split second' before the car jumped back onto the slab and darted towards plaintiff's truck, ramming it. While there may be some authority to support the argument that there was no negligence in defendant's inadvertently allowing her car to get off of the concrete, (even though we note it was 18 feet wide and ample to accommodate two cars passing each other) if her conduct had stopped there, Sutton v. Bland, 166 Va. 132, 184 S.E. 231, we note that no one asked her, nor did she testify, that she made any effort to apply her automobile's brakes or to reduce its speed after dropping off onto the shoulder. It has been stated as a general rule of law that a part of a motor vehicle operator's duty is to have it under such control as to avoid collision with other persons properly operating vehicles on the same highway, and this includes being able to slow the car to meet the requirements of varying road conditions or to stop it, if necessary, to avoid collision. In this connection see 5 Am.Jur., 'Automobiles', Secs. 165-167. Of course a motorist is not liable for an 'unavoidable' or 'inevitable' accident, but an accident is 'inevitable' or 'unavoidable' only 'if the person by whom it occurs neither has, nor is legally bound to have, sufficient power to avoid, or prevent its acting so as to injure others.' Am.Jur. Vol. 25, 'Highways', Secs. 162, 223, Vol. 38, 'Negligence', Sec. 6. Such an accident is brought about by some 'agency' over which the motorist has no control and is rendered 'inevitable' thereby, while he is using the customary modes of controlling his car. See Ralston v. Dossey, 289 Ky. 40, 157 S.W.2d 739. Examples of such agencies may be the unanticipated presence of grease or other material on a road rendering it slick or slippery, or, of loose gravel, or some latent defect or unforeseeable condition which renders good breaking ineffective when applied. See, for instance, Consolidated Coach Corp. v. Hopkins' Adm'r., 238 Ky. 136, 37 S.W.2d 1; DeForest v. Soules, 278 Mich. 557, 270 N.W. 785; and other cases cited in the Annotations at 113 A.L.R. 1002, and 10 A.L.R.2d 895. Here, however, there was no such agency or factor. Defendant testified that the highway was 'slightly' damp, but that she didn't think it had rained and there was no evidence that the road was wet, slick or slippery. The weather was then apparently clear and the visibility good, with no obstructions. In fact, there is no reason, condition of the road, or other explanation for defendant's failure to apply her brakes, or justifiable reason from any source for her 'losing control' of the car, rather than slowing it down and proceeding to a point on the shoulder where she could have safely brought it back on the pavement. There is no evidence that the shoulder was not ample to have afforded this. In this connection notice Foster v. Gamble-Robinson Co., 188 Minn. 552, 247 N.W. 801, 802. Nor are we impressed by defendant's testimony that she was off of the road only 'a split second', and the argument made by her counsel concerning this circumstance. Similar testimony was given by the defendant in Ind v. Bailey, 198 Minn. 217, 269 N.W. 638, but there the court held that an automobile driver may not claim the benefit of the rule justifying loss of control caused by an emergency or traffic hazard, when his own acts have contributed to the situation in which he finds himself.

As we have found no evidence in the present case that the collision involved was the result of an unavoidable or inevitable accident we...