McGrath v. Furr, 36510
| Citation | 293 P.2d 609 |
| Decision Date | 14 February 1956 |
| Docket Number | No. 36510,36510 |
| Parties | Don McGRATH and Ralph Hulvey, Plaintiffs in Error, v. Vera B. FURR, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. In an action for damages for personal injuries, it is error for a trial court to permit a witness, after proper objection, to testify as to the condition of a place or subject without it having been first established by positive evidence that its condition at the time to which the testimony related was substantially the same as at the time of the injury.
2. It is error for a trial court to permit the introduction in evidence, after proper objection, of pictures unless it is first established by positive extrinsic evidence that they are faithful representations of the place or subject as it existed at the time involved in the controversy.
Appeal from the District Court of Tulsa County; Elmer W. Adams, Judge.
Action by Vera B. Furr, as plaintiff, to recover damages for alleged personal injuries resulting from negligence, against the defendants, Ralph Hulvey and his employer, Don McGrath. From a verdict and judgment for plaintiff, defendants have appealed. Reversed and remanded with directions.
David H. Sanders, Tulsa, Bert McElroy, Tulsa, R. A. Wilkerson, Pryor, for plaintiffs in error.
Farmer, Woolsey, Flippo & Bailey, Tulsa, for defendant in error.
This is an action for damages for personal injuries, brought by Vera B. Furr, as plaintiff against the defendants, Ralph Hulvey and his employer Don McGrath. The parties will be referred to as they appeared in the trial court.
On the evening of December 5, 1952, the plaintiff drove her 1950 Plymouth automobile into a filling station operated by the defendant, McGrath in the City of Tulsa, Oklahoma. The purpose of the visit was to stop the constant burning of the stop lights on the car. McGrath's employee, Ralph Hulvey was requested to remedy the defect. Plaintiff then drove her car off the driveway and onto a sloping piece of ground where, without setting the brake or putting the car in gear, she alighted therefrom. The defendant, Hulvey, inspected several places and then got a four-wheel floor jack, commonly called a low-boy jack, which he rolled under the car and raised it. He slid under the car on a 'creeper' and disconnected the wires from the stop light switch, located on the frame of the car just forward of the left rear wheel. Then the car fell off the jack which turned and struck plaintiff on the foot and caused her to fall to the driveway. One of the vertabrae in her back was fractured. She was confined in a hospital and at home for several months for treatment of the injury. At the trial, medical testimony was introduced to prove the nature and extent of her resulting disability. This action which was filed on April 24, 1953 sought recovery of damages from the injuries sustained. It was tried to a jury, resulting in verdict and judgment for plaintiff in the amount of $18,000 from which the defendants have perfected this appeal.
The principal grounds relied upon for reversal are: asserted insufficiency of the evidence to establish negligence; admission of incompetent evidence over objection and exception; and failure of the trial court to properly instruct the jury upon the issues in the case. Many features of the first two propositions are interlocking as will be borne out by the discussion following.
The specific acts of the defendant, Hulvey, which, in her amended petition, plaintiff alleged constituted negligence and which she attempted to establish by evidence at the trial were that he 'placed the jack beneath the automobile by placing the lifting portion of the jack upon the drive shaft of said automobile at a place approximately one and one half inches in front of the rear termination of said drive shaft and then and there elevated said automobile by means of the jack. * * * that such action left the automobile in an unbalanced and unsecure position where from its own inertia or the slightest touch would and did roll off the jack.'
The only direct evidence that the jack was placed under the drive shaft was that of plaintiff herself, as follows:
That was objected to as being a conclusion and exception was saved. The accident happened after dark at a place where it was necessary for Hulvey to use a flash light. Plaintiff further testified that, although she was working in an airplane assembly plant installing some of the electrical and radio wiring, she had no 'experience, education or training in the mechanics of an automobile in any way, shape or form;' that she did not 'know anything about automobiles.' A full size scale drawing of the outline of the car on a long piece of wrapping paper was placed on the floor of the court room and the plaintiff stood on the paper at the same relative position with reference to the side of the car as she was at the time of the accident. The outline of her shoes was drawn on the paper. At the request of the examining attorney, she then placed a yardstick on the paper in the relative position of the jack handle, prior to the fall of the car. With the handle of the jack on the drawing, the cradle or lifting part of the jack lacked about one foot of reaching the drive shaft of the car.
The defendant Hulvey, who was under the car and was the only person who saw and knew where the jack was set, testified that the cradle thereof was placed under the frame of the car. He also testified that while he was under the car and after he had disconnected the switch and, while plaintiff was standing against the car at the open left front door, with only her left foot on the ground, the starter of the car began turning the motor and the wheels. He had raised the side of the body of the car but not enough to lift...
To continue reading
Request your trial
-
Furr v. McGrath
...out from beneath the car. As will be noted from the basic in the appeal growing out of the first trial of this case, McGrath v. Furr, Okl., 293 P.2d 609, 611, the defendant Hulvey, who jacked up the car and then got under it on a creeper 'was the only person who say and knew where the jack ......
-
Barnes v. Oklahoma Transp. Co., 37509
...the place or subject at the time to which testimony is related and pictures taken is substantially same as at time of injury. McGrath v. Furr, Okl., 293 P.2d 609. However, in the present case the record reveals that this was shown by the testimony of the driver of the bus who was present at......