Phillips v. Ward
| Decision Date | 03 April 1945 |
| Docket Number | 31402. |
| Citation | 157 P.2d 450,195 Okla. 315,1945 OK 114 |
| Parties | PHILLIPS et al. v. WARD. |
| Court | Oklahoma Supreme Court |
Appeal from District Court, Payne County; Henry W. Hoel, Judge.
Action by Charles L. Ward against Fred Phillips and Wilson & Co Inc., to recover for injuries sustained when an automobile in which plaintiff was riding was struck by a truck driven by first-named defendant and owned by last-named defendant. From a judgment for plaintiff, defendants appeal.
Affirmed.
Syllabus by the Court.
1. Where a given set of facts is such that reasonable men may fairly differ upon the question as to whether there was primary negligence on the part of defendants, the determination thereof is for the jury.
2. In order to impute the negligence of the driver of an automobile to the one riding the relation of master and servant or principal and agent must exist or the parties must be engaged in a joint enterprise whereby a responsibility for the acts of each other exists.
3. The verdict of a jury for $4,000 for personal injuries to the plaintiff who suffered a temporary concussion and remained in the hospital for treatment for the accidental injury for a period of 21 days and wherein the evidence discloses a probable permanent impairment of plaintiff's physical ability is not excessive.
Swank & Swank, of Stillwater, for plaintiffs in error.
Brown Moore and Guy L. Horton, both of Stillwater, for defendant in error.
Charles L. Ward, hereinafter called plaintiff, brought this action against Fred Phillips and Wilson & Company, hereinafter called defendants, to recover damages for personal injuries sustained when a truck and automobile collided at the intersection of Duncan Street and Eighth Avenue in Stillwater, Oklahoma. A trial to a jury resulted in a verdict for the plaintiff for $4,000. Judgment was entered thereon and defendants appeal.
The first two propositions presented raise the sufficiency of the evidence to sustain the verdict of the jury. The evidence is in irreconcilable conflict. The plaintiff was riding with H C. Campbell and was traveling west in an automobile driven by the said Campbell. The defendant Fred Phillips was driving a truck owned by the defendant Wilson & Company and was traveling south on Duncan Street in Stillwater, Oklahoma when a collision occurred at the intersection. The truck struck plaintiff's automobile midway and on the right of the front door and the automobile was hurled onto the southwest corner of the intersection of the street and the truck was driven a few feet down the street under its own power and parked on the north side of Duncan Street where photographs were taken. The plaintiff, together with the driver of the car, testified that the automobile entered the intersection at 8 or 10 miles an hour and that plaintiff saw the defendant's truck coming at 35 or 40 miles an hour 75 feet up the street from the intersection. The defendant, Fred Phillips, together with the occupant of the truck he was driving, both testified that the defendant's truck entered the intersection at 10 or 12 miles an hour and saw the Campbell car approaching at approximately 35 miles an hour.
It is well settled by the decisions of this court that where a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was primary negligence on the part of the defendant the determination of the matter is one for the jury. Dickinson v. Granbery, 71 Okl. 9, 174 P. 776; St. Louis & S. F. R. Co. v. Loftis, 25 Okl. 496, 106 P. 824. We are of the opinion and hold that the verdict of the jury is sustained by competent evidence reasonably tending to disclose negligence on the part of the defendants.
It is next argued that the court erred in giving instruction No. 7, the purport of which was to direct the jury that the plaintiff was a guest in the automobile of H. C. Campbell and that the contributory negligence, if any, of H. C. Campbell is not to be imputed to the plaintiff. In Hasty v. Pittsburg County Ry. Co., 112 Okl. 144, 240 P. 1056, 1057, it is stated:
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