Padgett v. Mckissick

• Decision Date: 10 September 1929
• Docket Number: Case Number: 18670
• Citation: 138 Okla. 63,280 P. 409,1929 OK 310
• Parties: PADGETT v. McKISSICK et al.
• Court: Oklahoma Supreme Court

1929 OK 310

280 P. 409

138 Okla. 63

PADGETT v. McKISSICK et al.

Case Number: 18670

Supreme Court of Oklahoma

Decided: September 10, 1929

Syllabus

¶0 1. Automobiles--When not Negligence to Drive to the Right of Overtaken Vehicle.

As a general proposition, it is negligence for an overtaking vehicle to pass to the right of an overtaken vehicle, contrary to the rules of the road and section 10164, Comp. Stat. 1921, as amended by chap. 76, S. L. 1927. But this rule is not absolutely invariable; and where from the condition of the road or street in connection with the arbitrary or willful conduct of the overtaken vehicle in monopolizing the road and refusing to obey the law by refusing to turn to the right within a reasonable time, after sufficient and proper warning it becomes impracticable to pass to the left, the overtaking vehicle may pass the other vehicle on the right side thereof, provided there exists a substantial necessity for such passing, without being guilty of any negligence or breach of duty to the driver of the overtaken vehicle; provided, of course, that he uses ordinary care in so passing.

2. Negligence--When Negligence and Proximate Cause Questions for Jury.

"The question of negligence, where there is competent evidence introduced from which reasonable men might draw different conclusions, is one for the jury, and under like circumstances, the question of proximate cause is one for the jury." ( City of Tulsa v. McIntosh, 90 Okla. 50, 215 P. 624.)

3. Same--Automobiles--Sustaining Demurrer to Plaintiff's Evidence Held Error.

In the present case, it is held, that the question of negligence of the defendants and the question of contributory negligence of the plaintiff, and the question of the proximate cause of the injury should have been submitted to the jury, and it was error to sustain a demurrer to plaintiff's evidence.

Commissioners' Opinion, Division No. 2.

Error from District Court, Tulsa County; Geo. C. Crump, Assigned Judge.

Action by G. F. Padgett against W. H. McKissick, E. A. Shaw, and E. G. Baylock, doing business under the trade name of the Peerless Supply Company. Judgment for defendants, and plaintiff appeals. Reversed and remanded for new trial.

Harry Fair, Hal Crouch, Whit Y. Mauzy, and J. B. Coppedge, for plaintiff in error.

West, Gibson, Sherman, Davidson & Hull, for defendants in error.

HALL, C.

¶1 This was an action by G. F. Padgett against W. H. McKissick, E. A. Shaw, and E. T. Baylock, doing business as the Peerless Supply Company. The action was for damages for personal injuries which the plaintiff received in a collision between a Ford truck driven by an employee of the defendants and a fire truck owned and operated by the city of Tulsa.

¶2 The case terminated on a demurrer to plaintiff's evidence. Therefore, we must consider the facts in the case to consist of all the inferences and conclusions which may reasonably be drawn from the testimony introduced by plaintiff together with the surrounding circumstances.

¶3 The facts regarding the proximate cause of the injury are substantially as follows: The plaintiff was a fireman employed on the fire department of the city of Tulsa. The fire truck was en route to a fire. The colliding vehicles were traveling in the same general direction. The plaintiff was standing on the left running board, and cranking a siren to give warning to the traffic of the approach of the fire truck. The Ford truck, which was owned and operated by the defendants and driven by one of their employees, was first seen by the driver of the fire truck about one block away; and while the testimony is somewhat conflicting, there is ample testimony in the record to show that the driver of the Ford truck looked around and saw the approaching fire truck, and failed to turn to the curb, but kept driving for some relatively considerable distance. The Ford truck was in the center of the street. Instead of driving to the curb, pursuant to the ordinances of the city and pursuant to safety, he drove across the street intersection, and a short distance further, and turned his car at about a 45 degree angle, and drove it beyond the curb line of the street, and into a triangular shaped area of ground which was covered with chat. At this place and at this point, the collision occurred. The left running board of the fire truck and the front end of the Ford truck collided. It appears that the driver of the fire truck waited until he got within about 15 or 20 feet of the defendants' truck and then drove into that area of ground covered with chat which was to the right of the street on which they were traveling. It is difficult to describe the positions of the street intersections near the scene of the accident, but the parcel of ground covered with chat, though no part of the street, lies within the street on which the vehicles were traveling, which was Second street, if Second street were defined by parallel lines. In other words, the area of land covered with chat constitutes a jog into Second street, and a person traveling eastward along Second street would drive into the chat unless he swerved his vehicle considerably to the left at the intersection of Second street and Kenosha street. Formerly there was a curb on that part of the area of land covered by the chat which bordered Second street and Kenosha street. The curb, however, had been removed. The parcel of land perhaps belonged to the Missouri, Kansas & Texas Railway Company.

¶4 There is evidence in the record which indicates that the driver of the fire truck intended to drive across the "chat" regardless of the conduct of the driver of the Ford truck.

¶5 The plaintiff received serious injuries.

¶6 At the close of the testimony offered by plaintiff, the defendants interposed a demurrer to the evidence, which demurrer was argued and fully considered by the court, and sustained, and judgment entered for defendants.

¶7 The only question presented here for review is whether or not the action of the court was proper in sustaining a demurrer to the evidence. The plaintiff pleaded the ordinances of the city of Tulsa, which, among other things, give the right of way to fire trucks answering fire calls or alarms, and to certain other vehicles, and which ordinances require that on the approach of fire trucks, all traffic shall pull as nearly as possible to the curb on either side of the street. It is the further contention of the plaintiff that the driver of defendants' truck was monopolizing the street and refusing to respond to the fire bell or the siren howling the approach of the fire truck; and that due to the location of the street intersections and the heavy traffic on the street and the position of the Ford truck in the street, and the apparent arbitrary action of the driver of the Ford truck in not surrendering to the fire truck that portion of the street which the ordinances had provided in such cases for the momentary use of the fire truck, it became absolutely necessary that the fire truck pass or attempt to pass the defendants' truck on the right side...