Okla. City v. Wilcoxson

• Decision Date: 10 September 1935
• Docket Number: Case Number: 24049
• Citation: 48 P.2d 1039,173 Okla. 433,1935 OK 767
• Parties: OKLAHOMA CITY v. WILCOXSON
• Court: Oklahoma Supreme Court

1935 OK 767

48 P.2d 1039

173 Okla. 433

OKLAHOMA CITY v. WILCOXSON

Case Number: 24049

Supreme Court of Oklahoma

Decided: September 10, 1935

Syllabus

¶0 1. Automobiles--When Proper Use of Road to Drive on Left Side.

The driving of an automobile on the left side of the road in the act of passing a vehicle going in the same direction is of itself a proper use of the road.

2. Same--When Negligent to Drive on Left Side.

The driving of an automobile on the left side of the road in the act of passing a vehicle going in the same direction is negligent, if the circumstances are such that a reasonably prudent person, in the exercise of ordinary care, would not pass under similar circumstances.

3. Same--Collision With Approaching Automobile--Question of Negligence for Jury.

Where one driving an automobile on the left side of the road, in order to pass vehicle going in same direction, collides with automobile going in opposite direction, and the testimony as to the attendant facts and circumstances is conflicting to the extent that minds might differ as to who, if anyone, was at fault, the question of negligence is one for the jury.

4. Negligence--Erroneous Instruction as to Particular Conduct Constituting Negligence.

Where an instruction is so framed that it in effect instructs the jury that particular conduct constitutes negligence, while the facts and circumstances are such that such conduct is not negligence per se, such instruction is erroneous and invades the province of the jury.

5. Trial--Sufficiency of Instructions--Refusal of Requested Instructions.

Where the instructions given the jury fairly interpret the law as to an issue involved, it is not error to refuse to give requested instructions on such issue.

6. Appeal and Error--Showing Required as to Error in Refusal to Give Requested Instruction.

To predicate error on part of court in refusing to give a requested instruction, it is necessary to show not only that the requested instruction would be proper, but also to indicate in what respect the instructions given by the court did not fully cover the issue therein presented.

7. Damages--Measure of Damages to Automobile--Cost of Repairs--Burden of Proof.

The measure of damages to automobile, resulting from actionable injury, where same can be restored at a cost less than the value before injury, is the reasonable cost of repairs made necessary by the injury, and the burden of proof is upon the claimant to show affirmatively the causal connection between the injury and necessity for the repairs made, as well as the reasonableness of the cost thereof.

Appeal from District Court, Oklahoma County: Sam Hooker, Judge.

Action by T. D. Wilcoxson against the City of Oklahoma City. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

W. H. Brown and Harlan T. Deupree, for plaintiff in error.

Earl Sadler and J. Roy Orr, for defendant in error.

PER CURIAM.

¶1 The parties will be referred to as they appeared in the trial court.

¶2 Plaintiff, Wilcoxson, sued defendant, city of Oklahoma City, for damages growing out of a collision with an automobile being operated by an employee of the defendant. The action was for $ 2,000 on account of personal injuries and for $ 250, on account of damages to plaintiff's automobile. These items of damage were set forth as separate causes of action in plaintiff's petition.

¶3 The basis of plaintiff's claim, as set forth in his petition, was: (1) That the defendant, at the time of the collision, was operating defendant's car at an unlawful rate of speed: (2) without regard for the rights of others using the highway; (3) that the defendant's agent failed to operate under control, and failed to exercise a proper lookout for other automobiles using the highway; and (4) negligently and unlawfully drove said automobile at an unlawful speed across the center of the highway and to the left of the center thereof and upon and against plaintiff's automobile.

¶4 Defendant's answer was a general denial, and, further, that if plaintiff suffered any personal injuries or damage to his car the same arose because of the negligent and unlawful manner in which plaintiff was operating his car; that plaintiff was driving at an unlawful rate of speed and without regard to the rights of others, and through his own negligence and want of care sustained the injuries, if any, arising out of the collision.

¶5 The evidence discloses that plaintiff's car was proceeding west on the north side of the center of the highway, with a clear way ahead. The defendant's car was proceeding eastward on the highway, being preceded by a Buick sedan. It appears that the sedan slackened its speed, and that defendant's care turned to the left, that is, to the north of the center of the highway for the purpose of passing, and after doing so discovered that in front of the sedan there were two cars, one of which was crippled and the other pushing the same, and also at the same time discovered plaintiff's car approaching from the east. According to the testimony of the driver of defendant's car, he could not pass the three cars and resume the south side of the highway in time to avoid a collision with plaintiff's car, and also he could not resume his place in the rear of the cars theretofore preceding him by reason of the fact the same had come to a practical standstill.

¶6 It appears that at this point on the highway there is a wide driveway leading to the north. It seems that plaintiff's car swerved to the north side and partially off of the pavement with a view to permitting defendant's car to pass between plaintiff's car and the three cars on the south side of the highway. It further seems that defendant's car, in order to avoid the accident, undertook to cross the north side of the highway and onto said driveway, and believing that the plaintiff's car was going up the driveway, undertook to stop his car on the west of the center of the driveway, at which point the collision occurred. There was conflict in the evidence, but the foregoing is a substantial statement of the nature of the accident.

¶7 The jury returned a general verdict for plaintiff in the sum of $ 750.

¶8 Defendant tenders 21 assignments of error, which are grouped under four propositions.

¶9 The first proposition is to the effect that there is no evidence tending to show primary negligence on the part of the defendant, and therefore the cause was improperly submitted to the jury. In a situation of the kind here, where evidence is conflicting, the question of negligence is one for the jury, and same was properly submitted. Marland Refining Co. v. Duffy, 94 Okla. 16, 220 P. 846.

¶10 Defendant's second proposition is that "the court erred in its instruction with reference to defendant being on the wrong side of the road, without evidence upon which to base such instruction." The instruction in question is as follows:

"It is the duty of all persons in the operation of an automobile upon a public highway to exercise ordinary care and caution and to have due regard for the rights of others lawfully using the highway. It was the duty of Brewer, the servant and employee of the city, in this case, in operating his car at said time and place in question, to exercise ordinary care and caution in the operation thereof, to drive the same at a rate of speed that was not dangerous to public safety, and it is charged here that he failed to comply with the provisions of the law in that he was operating his car at an excessive rate of speed and drove the same on the wrong side of the road, that is, the left-hand side or on the north side of the road in the path of the plaintiff's car, and that this collision occurred by reason of his negligent act, as aforesaid.

"Now, if you find from a preponderance of the evidence here, that Brewer in the operation of his car at said time and place was guilty of either of the acts of negligence complained of in the petition in this case, and should you further find from a preponderance of the evidence that that negligence was the proximate cause of the plaintiff's injury, then, and in that event, it will be your duty to return a verdict in this case in favor of the plaintiff and against the city for whatsoever sum will compensate him for his injuries, not to exceed the amount prayed for in the petition.

"But, on the other hand, if the plaintiff fails to prove his case, as outlined in these instructions, or if the jury should believe from the evidence that the plaintiff himself was guilty of negligence in the operation of his car at said time and place, and that that negligence proximately contributed or proximately caused his own injury or damage, then in either event it would be your duty to return a verdict in favor of the defendant city in this case.

"Given and excepted to by defendant city and exception allowed.

"Sam Hooker, Judge."

¶11 The substance of defendant's objections to this instruction is: (1) That the question of excessive rate of speed was improperly submitted because there was no evidence to support it; (2) that the question of being on the wrong side of the road was improperly submitted because same was not alleged in the petition; and (3) that the instruction was practically peremptory for the plaintiff if the jury found that defendant was on the wrong side of the road.

¶12 The question of what is an excessive rate of speed is necessarily a relative one. A given rate of speed well under the maximum prescribed by law may or...