Oklahoma Ry. Co. v. Jones, 34834

• Decision Date: 25 November 1952
• Docket Number: No. 34834,34834
• Citation: 250 P.2d 472,207 Okla. 476
• Parties: OKLAHOMA RY. CO. v. JONES.
• Court: Oklahoma Supreme Court

Page 472

250 P.2d 472

207 Okla. 476

OKLAHOMA RY. CO. v. JONES.

No. 34834.

Supreme Court of Oklahoma.

Nov. 25, 1952.

Syllabus by the Court.

1. In an action for damages for personal injuries, the question of whether there is any competent evidence of primary negligence sufficient to submit the case to the jury is one of law for the court.

2. Where a passenger on a common carrier of passengers for hire, in this case a motor bus, was injured by an alleged sudden and violent jerk or lurch of the vehicle, and the evidence is conflicting as to whether such jerk or lurch of the bus occurred and if so, whether it was caused by the negligent acts of the bus operator, the question of whether the injury was due to the carrier's negligence is one of fact for the jury.

Richardson, Shartel & Cochran, F. M. Dudley, and Davis B. Richardson, Oklahoma City, for plaintiff in error.

B. H. Carey, Cantrell, Carey & McCloud, Oklahoma City, Charles V. Wheeler, Oklahoma City, of Counsel, for defendant in error.

BINGAMAN, Justice.

This action was brought by the plaintiff, L. H. Jones, against the defendant, Oklahoma Railway Company to recover damages sustained by plaintiff while riding upon a bus owned and operated by defendant, it being charged that the injuries to plaintiff were due to negligence on the part of defendant. The trial court overruled a motion for directed verdict and submitted the cause to a jury which returned a verdict for plaintiff. Defendant appeals.

In his second amended petition plaintiff alleged that he boarded one of the defendant's busses at the corner of 25th Street and South Walker Avenue, in the City of Oklahoma City; that he handed a transfer to the driver of the bus, plaintiff being the last passenger aboard; that while he was still standing there the bus started and pulled away from the curb, and that as plaintiff turned and started to go to a seat the bus lurched forward and then came to a sudden stop throwing plaintiff against the windshield and an iron rod in front of the windshield, from which he rebounded and struck some other obstruction. He alleged severe injuries both to his head and body, which rendered him unable to continue to perform the duties of the employment in which he was engaged, and which to a considerable degree permanently incapacitated him for doing any work in which he had been trained.

In its answer defendant generally denied all material allegations in the petition and set up the defense of contributory negligence on the part of plaintiff. It further alleged that plaintiff's injuries, if any, were due to an unavoidable accident on the part of defendant and its employees.

Plaintiff testified that he was sixty-one years old; that he was employed by American Telephone and Telegraph Company, in the plant department, and had been so employed for thirty years; that on the particular evening when he was injured he was the last passenger aboard the bus; that after he boarded the bus it pulled away from the curb and he handed his transfer to the driver of the bus, steadying himself by putting his hand on the fare box; that after giving the driver his transfer he turned to go to a seat when the bus lurched forward and then came to a sudden and abrupt stop, throwing him violently against the windshield and the iron bar which was in front of the windshield, and causing the injuries which he claimed to have sustained. His testimony as to his injuries was substantiated to a considerable extent by the testimony of physicians, and his superior in the plant department of the American Telephone and Telegraph Company testified that thereafter he was unable to do his work properly and for that reason was finally discharged.

When plaintiff was injured all the other passengers were seated and several testified that the lurch and stop were not unusual or violent and did not throw them from their seats, but two of these witnesses testified that the cause of the sudden stop was a vehicle which pulled in front of the bus as it started down the street towards a stop light, and one of them testified that when the vehicle appeared in front of the bus the driver slammed on the brakes. The driver testified that he did not stop on account of this vehicle, but merely slowed down to permit it to make a turn, and that the only stop he made was an ordinary...