Phillips v. Classen

• Decision Date: 23 October 1923
• Docket Number: Case Number: 12486
• Citation: Phillips v. Classen, 93 Okla. 82, 219 P. 708, 1923 OK 839 (Okla. 1923)
• Parties: PHILLIPS et al. v. CLASSEN.
• Court: Oklahoma Supreme Court

1923 OK 839

219 P. 708

93 Okla. 82

PHILLIPS et al. v. CLASSEN.

Case Number: 12486

Supreme Court of Oklahoma

Decided: October 23, 1923

Syllabus

¶0 1. Negligence -- Demurrer to Plaintiff's Evidence--Question of Fact.

The rule is, that if there is any competent evidence offered by plaintiff, reasonably tending to support the allegations of negligence and resulting injury, a demurrer to plaintiff's evidence should be overruled. Such evidence presents a question of fact for the jury.

2. Same--Personal Injury Cases--Contributory Negligence.

There is no such thing as contributory negligence on the part of a plaintiff unless there also appears primary negligence on the part of the defendant. And, in this jurisdiction, the matter of contributory negligence on the part of the plaintiff is always a question of fact for the jury.

3. Same--Questions of Fact-- Questions of Law.

In personal injury cases, there is always one of three propositions presented: First, negligence on the party of the defendant and resulting injury to plaintiff; and presents a question of fact for the jury. Second, primary negligence on the part of the defendant, combined with contributory negligence on the part of the plaintiff, and injury resulting to plaintiff; and presents a question of fact for the jury. Third, an entire lack of negligence on the part of the defendant, and injury resulting because of plaintiff's negligence; and becomes a question of law for the court, which should be taken care of on demurrer or motion for a directed verdict.

4. Same--Sufficiency of Evidence--Automobile Collision.

Record examined, and held, that there is competent evidence appearing in the record offered upon the part of the plaintiff reasonably tending to establish primary negligence upon the part of the defendant, and resulting injury to plaintiff, and that the court did not err in overruling defendant's demurrer to plaintiff's evidence.

5. Appeal and Error-- Waiver of Assignments of Error--Failure to Brief.

Assignments of error not argued in plaintiff in error's brief will be treated as waived.

6. Same--Affirmance of Negligence Case--Judgment on Supersedeas Bond.

Record examined, and held, that the judgment of the trial court should be affirmed; and defendant in error having moved for judgment against the sureties on the supersedeas bond in case of an affirmance, judgment should be entered upon the bond.

Freeling, Hood & Howard, for plaintiffs in error.

Twyford & Smith, for defendant in error.

SHACKELFORD, C.

¶1 For convenience the parties will be referred to as plaintiff and defendants, as they appeared in the trial court. Plaintiff began this action on the 21st day of July, 1919. The petition charges that on the 6th of July, 1919, at about the hour of 6:30 o'clock p. m., the defendant Clyde Pierce, as driver of a truck owned by the defendants, caused said truck to collide with plaintiff's car, at or near the crossing and intersection of Walker and 23rd streets, in Oklahoma City; and by reason of such collision plaintiff sustained injury and damage to his person and to his car. The plaintiff alleges that the collision was due to the fact that the truck of the defendants was driven in a careless and reckless manner, and at a dangerous rate of speed, and in violation, of section 1210 of the city ordinances, which fixes the maximum speed at eight miles per hour; and further, in violation of section 1199, which requires driving upon the right- hand side of the street; all of which carelessness and recklessness, and violation of the ordinances, was the proximate cause of the injury. Plaintiff prayed for damages in the amount of $ 1,415. On the 31st day of March, 1920, the plaintiff, by the consent of the defendants, filed an amended petition, making F. O. Phillips and R. I. Phillips additional parties defendant, and laying his damages at $ 3,415. On the 6th of March, 1920, defendants F. O. Phillips and Clyde Pierce filed their separate answer, and also a cross- petition against the plaintiff. The answer was in effect a general denial, and a plea that the collision was occasioned by plaintiff's own negligence and want of care. The cross-petition sought to recover $ 30 expended for repairs on the truck of the defendants. On the same day, defendants D. M. Phillips and R. I. Phillips filed their separate answer, denying any control over the truck, and denying that Clyde Pierce was in their employ. Plaintiff filed a reply, making up the issues. The cause was submitted to a jury on the 7th of January, 1921, resulting in a verdict and judgment in favor of the plaintiff, against F. O. Phillips and Clyde Pierce, in the sum of $ 2,000, and they prosecute this appeal. The defendants present several assignments of error in their motion for a new trial and petition in error. However, they content themselves with arguing one assignment of error, the fourth, which they state as follows:

"The court erred as a matter of law in overruling the demurrer interposed by the defendants at the close of the plaintiff's evidence, said demurrer being of the following tenor:

"'Comes now the defendant at the close of the evidence on the part of the plaintiff and after the plaintiff has rested and demurs to said evidence for the reason that the same is wholly insufficient to show any negligence on the part of the defendant, and shows further that the plaintiff was guilty of contributory negligence and therefore he cannot recover in this action.'"

¶2 All other assignments of error are waived. This assignment of error presents the question of the sufficiency of the plaintiff's evidence. The rule is, that if there is any evidence offered by the plaintiff, reasonably tending to establish his allegations of negligence and...