Mitchell v. Aaronson
| Decision Date | 12 June 1923 |
| Docket Number | Case Number: 11588 |
| Citation | 216 P. 102,1923 OK 371,91 Okla. 82 |
| Parties | MITCHELL v. AARONSON. |
| Court | Oklahoma Supreme Court |
¶0 1. Negligence--Jury Question.
It is the settled law of this state that on the question of primary negligence, where the evidence is such that reasonable men may fairly differ as to whether negligence is shown, the determination of such question is for the jury. It is only where the facts are such that all reasonable men must form the same conclusions from them that the question is considered as one of law for the court.
2. Same.
Where from the facts shown by the evidence, although undisputed, reasonable men might draw different conclusions respecting the question of negligence or contributory negligence, such questions are properly for the jury.
3. Same--Contributory Negligence--Constitution.
Section 6. art. 23, Williams 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."
Commissioners' Opinion, Division No. 5.
Error from District Court, Tulsa County; John L. Coffman, Assigned Judge.
Action by Lillie Mitchell against Dave Aaronson for damages for personal injuries. Judgment for defendant, and plaintiff brings error. Reversed, and remanded.
C. H. Rosenstein and W. C. Carrick, for plaintiff in error.
Twyford & Smith, for defendant in error.
¶1 This was an action commenced in the district court of Tulsa county, Okla., on March 20, 1919, by the plaintiff in error, as plaintiff, against the defendant in error, as defendant, to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. We shall hereafter refer to the parties as plaintiff and defendant, respectively, as they appeared in the trial court.
¶2 The plaintiff alleged in her petition, in substance, that on the evening of March 16, 1919, she was riding in a certain Ford car, sitting in the front seat on the right side, which said automobile was being driven on South Boulder street in the city of Tulsa, proceeding north at a rate of speed not in excess of eight miles per hour, and that the defendant carelessly and negligently backed his automobile out from the east side of Boulder street (where it had been previously parked) at a high and dangerous rate of speed, striking the automobile in which the plaintiff was riding with great force, inflicting certain wounds and injuries to the plaintiff as set forth in her petition, to the damage of the plaintiff in the sum of $ 10,000.
¶3 The petition also alleges that the automobile in which the plaintiff was riding, was being driven by one Ed Ritschell, and that the plaintiff was riding therein as a guest of said Ed Ritschell.
¶4 To the petition of the plaintiff, the defendant filed his answer, in which, in addition to a general denial, the defendant pleaded contributory negligence on the part of the driver of the automobile in which the plaintiff was riding, in that the same was being driven at a high and dangerous rate of speed, and at a rate of speed in excess of, and in violation of, the ordinances of the city of Tulsa, and that by reason thereof the accident was caused by the negligence of the driver of the automobile in which the plaintiff was riding.
¶5 There is evidence in the record on behalf of the plaintiff that in March, 1919, the plaintiff was residing in the city of Tulsa, and on the evening of March 16, 1919, she was riding in a certain Ford car, being driven by Ed Ritschell, being the guest of Mr. Ritschell, who was conveying the plaintiff from her brother's home to her own home. That said car was being driven north on the said Boulder street near the post office in the city of Tulsa, at which the accident in question occurred; that the defendant, whose car was parked on the east side of said street, backed his car out past the middle of the street, without giving any signal or warning before backing the same out, and that the back end of the defendant's car collided with and struck the car in which the plaintiff was riding, in which collision the plaintiff sustained certain injuries; that the car in which the plaintiff was riding was proceeding at a rate of speed from six to eight miles per hour at the time of the accident.
¶6 There is also evidence in the record that an investigation of the accident was made by a police officer of the city of Tulsa immediately after the happening of the accident, who testified that the car of the defendant was eight feet, six inches beyond the center of the street, in the direction which he was backing when he hit the car in which the plaintiff was riding.
¶7 There is also evidence in the record that the defendant stated to this officer at the time that he had not been driving long, and that he did not have a tail light, or rear light, or at least such light was not burning.
¶8 There is no dispute as to the fact that plaintiff sustained injuries as a result of the accident. The defendant offered no evidence except the following portions of ordinances of the city of Tulsa:
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...of negligence, the question is properly for the jury." Neversweat Mining Co. v. Ramsey, 84 Okla. 128, 202 P. 787; Mitchell v. Aaronson, 91 Okla. 82, 216 P. 102. "It is error for the court to instruct the jury to return a verdict for the defendant in a personal injury case, where the evidenc......
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Okla. Union Ry. Co. v. Lynch
...and no substantial errors appear upon the trial, the judgment should not be disturbed on appeal." ¶6 Also, in the case of Mitchell v. Aaronson, 91 Okla. 82, 216 P. 102, the same rule is stated, as follows:"It is the settled law of this state that on the question of primary negligence, where......
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