Miller v. Price, Case Number: 22004
Citation | 1934 OK 332,168 Okla. 452,33 P.2d 624 |
Decision Date | 29 May 1934 |
Docket Number | Case Number: 22004 |
Parties | MILLER v. PRICE. |
Court | Supreme Court of Oklahoma |
¶0 1. Negligence--Trial--Instruction on Contributory Negligence Held Error Where no Contributory Negligence Shown.
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. Trial--Instructions to Be Confined to Questions Covered by Evidence.
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. Negligence--Concurring Negligence of Third Party no Defense for Wrongdoer.
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. Reversed and remanded.
Walter E. Latimer and V. P. Crowe, for plaintiff in error.
Ledbetter, Stuart, Bell & Ledbetter, for defendant in error.
¶1 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.
¶2 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.
¶3 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.
¶4 The circumstances surrounding the collision between the two cars as detailed by plaintiff are as follows:
¶5 With reference to the facts surrounding the collision, the defendant testified as follows:
¶6 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.
¶7 Plaintiff contends that the court erred in giving an instruction on contributory negligence, which instruction is as follows:
¶8 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 Okla. 180, 18 P.2d 274. Negligence is defined as the want of ordinary care and diligence. Sec. 1783, O. S. 1931.
¶9 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."
¶10 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, so that we may know the evil sought to be remedied by the framers of the Constitution.
¶11 In the case of Pittman v. City of El Reno, 4 Okla. 638, 46 P. 495 (former appeal, 2 Okla. 414, 37 P. 851), the Territorial Supreme Court held:
"Under the Code of 1890, in an action brought, founded on a claim of damages, by reason of injury received on account of a defect in the sidewalk, where, at the conclusion of the...
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