Knox v. Loose-Wiles Biscuit Co.

• Decision Date: 12 December 1944
• Docket Number: Case Number: 31425
• Citation: 1944 OK 351,194 Okla. 611,154 P.2d 59
• Parties: KNOX v. LOOSE-WILES BISCUIT CO.
• Court: Oklahoma Supreme Court

1944 OK 351

154 P.2d 59

194 Okla. 611

KNOX v. LOOSE-WILES BISCUIT CO.

Case Number: 31425

Supreme Court of Oklahoma

Decided: December 12, 1944

Syllabus

¶0 1. AUTOMOBILE - General application of statute regulating speed.

The duties imposed upon operators of motor vehicles by the statute (47 O. S. 1941 § 92) are continuous in nature and obligatory irrespective of time and the direction of travel.

2. SAME - Proper instruction on statute where violation of same is alleged proximate cause of injury.

Where a violation of the statute, supra, is alleged to have been the proximate cause of the collision and there is evidence from which the jury may infer that such was the fact, and instruction which quotes the statute and advises the jury with respect to the application thereof to the facts as shown by the evidence is proper.

3. APPEAL AND ERROR - Defendant may not complain of inadequacy of recovery by plaintiff in action for tort.

In an action to recover unliquidated damages for an alleged tort inadequacy of recovery by the plaintiff is not error of which the defendant may properly complain.

Appeal from District Court, Oklahoma County; Albert C. Hunt, Judge.

Action by Loose-Wiles Biscuit Company against Dr. Roland F. Knox to recover damages for injuries to a truck sustained as the result of a collision between the truck and an automobile. Verdict and judgment was for the plaintiff in a nominal sum, and defendant appeals. Affirmed.

Dudley, Duvall & Dudley and Albert D. Lynn, all of Oklahoma City, for plaintiff in error.

Clayton B. Pierce, Truman B. Rucker, Fred M. Mock, and Bryan W. Tabor, all of Oklahoma City, for defendant in error.

PER CURIAM

¶1 This action was instituted on October 28, 1941, in the court of common pleas of Oklahoma county by Loose-Wiles Biscuit Company, hereinafter referred to as plaintiff, against Dr. Roland F. Knox, hereinafter referred to as defendant, to recover as damages the sum of $ 653.60 for injuries to a truck sustained on October 10, 1940, as the result of a collision between the truck and an automobile which was being driven by the defendant.

¶2 The plaintiff in its petition alleged, in substance, that the collision and the resulting injuries to its truck had been sustained as a result of the negligence of the defendant in driving an automobile at a high and dangerous rate of speed on a wet and slippery black top road and into the truck of plaintiff and failure of defendant to have the automobile under control and negligence in driving on the wrong side of the road and failure of the defendant to have the automobile equipped with proper brakes or to use the brakes which were on the automobile. Plaintiff alleged that as a result of the negligence of the defendant in the aforesaid respects its truck had been injured to the amount of $ 653.60, for which amount it prayed judgment.

¶3 The defendant filed an answer in which he denied being negligent in any respect, and also a cross-petition in which he alleged, in substance, that the collision had been caused by the negligence of a servant of the plaintiff in driving the truck at an excessive rate of speed and on the wrong side of the road and by his failure to keep a proper lookout for approaching vehicles, and that as a result of such negligence the truck had collided with the automobile which defendant was driving and had caused him serious personal injury to his damage in the sum of $ 127,000, for which amount he prayed judgment against the plaintiff. Reply to the answer and answer to the cross-petition consisted of a general denial. On motion of the defendant the action was transferred to the district court of Oklahoma county and there tried to a jury.

¶4 The evidence upon the issue of negligence adduced at the trial was in direct conflict. The evidence of plaintiff tended to establish the fact that its truck had stopped on the extreme righthand side of the road when it was run into by the automobile driven by the defendant, and that the collision had been caused by the speed at which defendant was driving in connection with the weather and road conditions prevailing, and that plaintiff was culpable in no respect. The evidence of defendant, on the other hand, tended to establish the fact that the truck of plaintiff was being driven at an excessive rate of speed under the prevailing weather and road conditions and to the left of the center of the highway and that this was the responsible cause of the collision between the two vehicles and to absolve the defendant from any culpability. The jury returned a verdict in favor of plaintiff and assessed its recovery at the sum of one dollar and the costs of the action. No objections or exceptions were filed to the verdict, and judgment was rendered thereon. Motion for new trial was overruled, and defendant has perfected this appeal.

¶5 As grounds for reversal of the judgment so rendered the defendant assigns a number of errors which he discusses and presents under the following two propositions, to wit:

"The court erred in giving instruction No. 13, relating to the duty of the driver to have his car under such control as to stop within the assured clear distance ahead, because the assured clear distance ahead rule has no application to daylight accidents occurring between vehicles meeting from opposite directions, and further because there was not such issue raised by the pleadings or evidence of either party.

"The verdict in this case cannot be justified on any hypothesis of the evidence and clearly shows the jury disregarded the evidence, were confused as to the law, and merely arbitrated the matter according to their own theories."

¶6 Under the first proposition defendant complains of the following instruction:

"You are further instructed that under the laws of this state, it is required that any person or persons operating or driving any motor vehicle upon any of the highways, shall operate the same in a careful and prudent manner, and at a rate of speed not greater nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway, and of any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead; and it is further provided as a rule of the road that vehicles in meeting each other shall keep to the right of the center of the road.

"You are further instructed that a violation of any of the foregoing rules and statutes constitutes negligence per se, that is, negligence in and of itself. But in this connection you are instructed that before one may be held to respond in damages for an act of negligence per se, it must appear from a preponderance of the evidence that such negligence was the proximate cause of the injury or damage complained of."

¶7 The vice in the foregoing instruction is said to consist in the inclusion therein of a portion of the statute (47 O. S. 1941 § 92) which regulates the speed of vehicles upon the highway. The defendant contends that the pleadings and evidence do not...