Nat'l Tank Co. v. Scott

• Decision Date: 15 December 1942
• Docket Number: Case Number: 30715
• Citation: 191 Okla. 613,130 P.2d 316,1942 OK 425
• Court: Oklahoma Supreme Court
• Parties: NATIONAL TANK CO. v. SCOTT et al.

1942 OK 425

130 P.2d 316

191 Okla. 613

NATIONAL TANK CO. v. SCOTT et al.

Case Number: 30715

Supreme Court of Oklahoma

Decided: December 15, 1942

Syllabus

¶0 1. AUTOMOBILES--Action for wrongful death caused by negligent driving--Question for jury whether driver was guilty of excessive speed under statute and city ordinance.

In an action for wrongful death resulting from alleged negligence of defendant in operating a motorcar at an excessive rate of speed on a city street in violation of a city ordinance and 47 O. S. 1941 § 92, which provide, in effect, that motor vehicles shall be operated at a speed no greater than is reasonable and prudent under the existing circumstances, the question whether the motor vehicle was being operated at such an excessive rate of speed within the meaning of the ordinance or statute as to constitute primary negligence is for the jury.

2. NEW TRIAL--Ground of insufficiency of evidence to support verdict--Trial judge may yield his impression or opinion upon testimony and accept that of jury if sustained by sufficient competent proof.

While it is the duty of the trial court, in the exercise of sound discretion, to grant a new trial if, in its judgment, the verdict is not supported by competent testimony, or if, upon the whole record, it is convinced that justice has not been done, yet this does not prevent the trial judge from yielding his impression or opinion upon the testimony and adopting that- of the jury if, upon consideration of the whole record, he is convinced that no prejudicial error has been committed by the court and that the verdict is sustained by sufficient competent proof which the jury has accepted and believed.

3. DEATH----Action for wrongful death--Damages limited to pecuniary loss sustained.

In an action brought under 12 O. S. 1941 §1053 for wrongful death of a spouse, parent, or child, the plaintiff is limited in damages to pecuniary loss sustained by the wrongful death.

4. APPEAL AND ERROR--Instructions in absence of exceptions reviewed only for fundamental error.

Where exceptions are not saved to instructions as required by 12 O. S. 1941 § 578, this court will review such instructions only to determine whether they are free from fundamental error.

5. SAME--Erroneous instruction on measure of damages not "fundamental error" within meaning of the rule.

The rule of law that the trial court must, on its own motion, properly instruct on the issues raised by the pleadings and evidence and that on appeal this court for that reason will review the instructions even in the absence of exceptions thereto in order to determine whether they are free from fundamental error, does not apply to instructions on the measure of damages, and such instructions will not be reviewed to any extent or for any purpose in the absence of exceptions thereto duly saved as required by statute (12 O. S. 1941 § 578).

Appeal from Court of Common Pleas, Tulsa County; Krit Logsdon, Judge.

Action by Murray Scott and Charolett Scott against the National Tank Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Everett Petry and E. LeRoy Allen, both of Tulsa, for plaintiff in error.

Hughey Baker, of Tulsa, for defendants in error.

GIBSON, J.

¶1 This action was instituted in the court of common pleas of Tulsa county by defendants in error against plaintiff in error to recover damages for the wrongful death of their minor child. Judgment was rendered on the verdict for plaintiffs below, and defendant appeals.

¶2 Defendant's first assignment charges error in overruling its motion for directed verdict.

¶3 After reviewing the record, we are of the opinion that the evidence of negligence was sufficient to warrant submission of the issue to the jury.

¶4 The accident occurred in a congested district in the city of Tulsa, when the deceased, a child of 5 1/2 years, ran from the curb into the street and was struck by the front fender of an automobile driven by defendant's agent. The child was fatally injured. The accident took place at a point approximately 40 feet distant from the street intersection.

¶5 There is no substantial evidence to show that the automobile was traveling in excess of any specified legal speed limit. The driver's vision was more or less obstructed by motor vehicles parked along the curb, and especially so by a large milk truck from behind which the child ran directly into the path of defendant's automobile. The car could have traveled no more than 16 feet after the accident when it was brought to a stop.

¶6 The question of negligence to be determined in the trial court was whether the automobile was being operated at a speed greater than was reasonable and prudent under the surrounding circumstances.

¶7 A city ordinance pleaded by plaintiffs would place upon the operator of a motorcar the duty to operate the same at a speed no greater than is reasonable and prudent under the existing circumstances, as does also our statute, 47 O. S. 1941 § 92, which requires that in determining whether the car was operated at a careful and prudent speed, due regard be given to the traffic, surface and width of the road, "and any other conditions then existing." The ordinance and the foregoing provision of the statute define the duties of the defendant in this case.

¶8 In such case, the question whether the automobile was being operated at such an excessive rate of speed as to constitute primary negligence is for the jury to determine in the light of all the existing conditions as revealed by the evidence. Townsend v. Cotten, 180 Okla. 128, 68 P.2d 790.

¶9 Plaintiffs also charged that the automobile was being driven at such an excessive rate of speed that the driver was unable to bring the same to a stop within the assured clear distance ahead, thus violating another provision of the above statute.

¶10 The foregoing allegation was placed at issue in the case, and the court instructed the jury thereon. Whether the operator of the automobile was driving at a speed which, in the existing circumstances, constituted a violation of the statute in this respect, and caused the accident, was also for the jury. We may say here, however, that in cases of this character the mere fact that an automobile is driven into or against a person or other object in its path does not raise a presumption that the speed was excessive within the meaning of the statute, supra. See Taylor v. Ray, 177 Okla. 18, 56 P.2d 376.

¶11 The next contention is that the trial court erred in denying defendant's motion for new trial.

¶12 This contention is based on the assertion that the trial judge by his own statements made at the hearing on the motion, clearly indicated that the verdict was contrary to the evidence and did not meet with his conscientious approval. In view of that circumstance, says the defendant, it was the duty of the court to Set aside the verdict and grant a new trial. White v. Dougal, 60 Okla. 200, 159 P. 907; Chicago, R. I. & P. R. Co. v. Warren, 63 Okla. 190, 163 P. 705.

¶13 In each of the two cited cases the trial judge stated, in effect, that if the cause had been submitted to him, he did not think he would have reached the same conclusion as did the jury, but was of the opinion that he should not place his judgment up against that of the jury on controverted issues of fact.

¶14 The order of the court denying motion for new trial in both of those cases was held erroneous and the judgment reversed on the ground that in such circumstances the trial court should set aside the verdict and grant a new trial in order to preserve the movant's substantial legal rights. This, court took the position that the trial judge considered himself without power to interfere with the verdict since there was evidence reasonably supporting the same. The rules governing such case were stated in White v. Dougal, supra, as follows:

"It is the duty of the trial court, upon a motion for a new trial, which challenges the verdict, upon the ground that it is contrary to the evidence, to weigh the evidence and to approve or disapprove the verdict, and if the verdict is such that in the opinion of the trial court it should not be permitted to stand, and it is such that he cannot conscientiously approve it, and he believes it should have been for the opposite party, it is his duty to set it aside and grant a new trial.

"In passing on a motion for a new trial, it is the court, and not the jury, that must weigh and determine for itself the effect of the evidence. It cannot be said that a court approves a verdict when its reason and judgment rebel against the conclusions it expresses.

"Not only must the jury be satisfied of the righteousness of the conclusion to which it arrives, but, unless that conclusion meets the affirmative, considerate approval of the mind and conscience of the court, it should not, where, challenged, be permitted to stand."

¶15 Here, the defendant duly challenged the sufficiency of the evidence by its motion for directed verdict and its motion for new trial.

¶16 The expression of the trial judge made on the motion for new trial and which, according to defendant, clearly revealed that the verdict did not meet with the court's conscientious approval, was as follows:

"The Court: My opinion in the case so far as the accident is concerned, as I said the other day when the motion was argued, if the case had been tried before me, without the aid or assistance of a jury, I would have found myself under the evidence that the accident and resulting death of the boy was an unavoidable accident. That is probably what I would have termed my decision, but I also said the other. day, and I say again that after the case was tried, the way it was, exceptionally well tried by both sides, entirely free from error, so far as I can find from reviewing the case and realizing the evidence in the case was such that it was simply a question of fact as to how it happened, with the result of this jury's verdict, I am convinced for me to disturb

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