Miller v. Price
| Decision Date | 29 May 1934 |
| Docket Number | 22004. |
| Citation | 33 P.2d 624,168 Okla. 452,1934 OK 332 |
| Parties | MILLER v. PRICE. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 19, 1934.
"Contributory negligence" is an act or omission on the part of plaintiff amounting to want of ordinary care which concurring or co-operating with the negligent act of defendant, is the proximate cause of the injury complained of, and necessarily presupposes negligence on the part of defendant.
Syllabus by the Court.
1. Section 6, art. 23, of the Constitution, provides that the defense of contributory negligence shall in all cases whatsoever be a question of fact, and shall at all times be left to the jury. Held, that, where the defendant has pleaded contributory negligence, but has introduced no evidence which tends to show contributory negligence on the part of plaintiff, and a review of all the evidence introduced in the case and all inferences which may reasonably be drawn therefrom permits but one conclusion which is that no contributory negligence has been shown, in such case the defense of contributory negligence as contemplated in the constitutional provision has not been presented, and it is error for the trial court to submit to the jury an instruction thereon.
2. Instructions in all cases should run to the facts and to all proper deductions and interpretations of them, and not to questions not presented or covered by the evidence.
3. It is no defense for a wrongdoer that a third party shared the guilt of the same wrongful act, nor can he escape liability for the damages he has caused on the ground that the wrongful act of a third party contributed to the injury.
Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.
Action by Gatton Miller against Prentiss Price. Judgment for defendant, and plaintiff appeals.
Judgment reversed, and cause remanded, with directions.
Walter E. Latimer, and V. P. Crowe, both of Oklahoma City, for plaintiff in error.
Ledbetter Stuart, Bell & Ledbetter, of Oklahoma City, for defendant in error.
This action was filed in the district court of Oklahoma county by Gatton Miller, hereinafter referred to as plaintiff, against Prentiss Price, hereinafter referred to as defendant, in which plaintiff seeks to recover damages for personal injuries sustained in an automobile collision. The cause was tried to a jury, which resulted in a verdict for defendant. From judgment thereon, plaintiff has appealed.
The automobile collision occurred on October 9, 1929. The record shows that plaintiff and defendant were traveling in defendant's Cadillac sedan automobile going east on highway No. 66 near Arcadia; that as they were approaching the top of a hill, they caught up with a negro riding in an empty wagon pulled by a team of mules; that defendant, who was driving, slowed down to a speed of about 30 miles per hour, and then started around said wagon, and at this moment a Dodge automobile came over the hill at a rapid rate of speed approaching from the east; that defendant was unable to pull around the wagon and get back to the right side of the road, and a head-on collision occurred between the two cars; and that as a result of the wreck plaintiff suffered the loss of one eye and other injuries.
There is some dispute in the testimony as to whether plaintiff was an employee or a guest of defendant at the time of the wreck, but this is not a material issue, as the degree of care which defendant was bound to use to avoid injuring plaintiff would be the same in either case.
The circumstances surrounding the collision between the two cars as detailed by plaintiff are as follows:
"Q. Now, just get right up to the wreck, Mr. Miller, just get to the wreck now, I want to hurry along. A. All right, after we passed through Arcadia, going east, we went down through the bottom and the road drilled a little around there and as we approached the hill out about a mile and a half or two miles the other side of Arcadia, we seen a cotton wagon going up a hill just ahead of us and we was stepping along pretty lively, I don't know how fast we were going, but we run up to this wagon and it lacked about forty or thirty or forty yards, I thought, of being to the top of the hill, is the way it looked, or we didn't see; I couldn't tell anything about it exactly and Mr. Price dashed around this wagon, and as he dashed around it, this car come over the hill and you see, there, and we all piled up in a row. * * *
Q. Do you know about how fast he was going until he darted around? A. I imagine about thirty-five or forty miles an hour.
Q. How far was he from this wagon before he darted around? A. Well, he run right on up and out, I thought he was going to stop in behind the wagon but he darted around.
Q. Well, about how many feet would you say he was from the wagon when he darted around? A. Well, he was right up against it, maybe within ten feet possibly.
Q. Did you know he was going to turn around that wagon? A. I didn't until he turned around, I never thought about his going around.
Q. Where was this wagon with reference to the top of this hill? A. It was back from the hill possibly thirty or forty feet."
With reference to the facts surrounding the collision, the defendant testified as follows:
"Q. When you got up to about where the nigger was, how far was he or his wagon at that time from the crest of the hill, Mr. Price? A. Well, I thought about 250 or 300 feet, that's the way I would estimate it.
Q. That's what you would estimate it? A. Yes.
Q. What or when you saw his-when you saw him over on the paved highway, what did you do with reference to his wagon? A. I naturally turned around to pass him.
Q. You turned around to pass him? A. Yes, Sir.
Q. Was there any car in sight at the time you turned around to pass him? A. No, Sir.
Q. As you turned around to pass him, did you slow down any? A. I did.
Q. About what rate of speed were you running then, Mr. Price, at the time you turned around his car? A. I would say thirty miles. * * *
Q. Had the plaintiff here, Mr. Miller, made any suggestions there up to the time that you started to go around him there with reference to what you should do there? A. He did not.
Q. Did he make any objections? A. He did not.
Q. Then, as you started around him, I wish you would say what you saw in front of you and what occurred? A. Let me have that again. When I started around the wagon, do you mean?
Q. Yes, Sir. A. I see; when we got about opposite the wagon, there come a car over the hill at a terrific rate of speed and I * * * (interrupted).
Q. Were you able to tell at the rate of speed it was going or were you able to turn around to the right and pass around the nigger? * * *
Q. Well, when the-Mr. Price, what did you do; how long did it take that car when you first saw it to reach where you were? A. Well, it was just a short run now, it was coming faster than I was, at least sixty miles an hour.
Q. What did you do and state why you did it? A. Well, rather than have a head-on collision, I turned to the left, I turned north.
Q. You tried to get out of his way? A. I tried to get out of his way; if he hadn't been going at the terrific rate of speed, I could have gotten away on the right side of the road and I had plenty of time."
Plaintiff alleges in his petition that his injuries were caused solely by the negligence of the defendant in attempting to pass the wagon near the top of the hill, and further alleges that, if said defendant had used due and proper caution, he would not have attempted to pass said wagon at said point, but would have waited until such time as he had an unobstructed view of the highway ahead.
Plaintiff contends that the court erred in giving an instruction on contributory negligence, which instruction is as follows:
Contributory negligence has been defined as an act or omission on the part of plaintiff amounting to want of ordinary care, which, concurring or co-operating with the negligent act of defendant, is the proximate cause of the injury complained of, and necessarily presupposes negligence on the part of the defendant.
Sloan v. Anderson, 160 Okl. 180, 18 P.2d 274. Negligence is defined as the want of ordinary care and diligence. Section 1783, O. S. 1931.
Section 6, art. 23, of the Constitution, provides: "The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury."
The above provision has had consideration by this court in many prior cases. An examination of the various decisions discloses, we believe, that the court has misinterpreted the true purpose, intent, and meaning thereof. With the view of clarifying the view of this court on said provision, we shall advert and quote from some of the former cases. But it may be well to examine the rule of law relating to contributory negligence existing prior to the adoption of the Constitution...
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