Pittsburg Cnty. Ry. Co. v. Hasty

• Decision Date: 28 October 1924
• Docket Number: Case Number: 14422
• Citation: 233 P. 218,1924 OK 990,106 Okla. 65
• Parties: PITTSBURG COUNTY RY. CO. v. HASTY.
• Court: Oklahoma Supreme Court

1924 OK 990

233 P. 218

106 Okla. 65

PITTSBURG COUNTY RY. CO. v. HASTY.

Case Number: 14422

Supreme Court of Oklahoma

Decided: October 28, 1924

Syllabus

¶0 1. Negligence--Proximate Cause of Injury--Burden of Proof.

Where recovery is sought by the plaintiff who alleges the damage or injury was caused by the negligence of the defendant, the burden is upon the plaintiff to prove the negligence of the defendant, and that such negligence was the proximate cause of the injury.

2. Street Railroads--Action for Injuries in Collision with Automobile--Traffic Violation by Both Parties--Erroneous Instruction. Where there is testimony tending to prove that both plaintiff and defendant were operating an automobile and street car respectively in violation of a city ordinance, it is error to charge the jury that if they find from the evidence the defendant was operating its street car in violation of the ordinance, such violation constituted prima facie negligence, and the burden was upon the defendant to prove its negligence was not the proximate cause of the injury.

3. Negligence--Proximate Cause of Injury--Burden of Proof.

The question what is the proximate cause of an injury is ordinarily a question for the jury, but the burden is always upon the plaintiff in an action for personal injuries to show the negligence charged was the proximate cause of the injury.

4. Appeal and Error--Prejudicial Error--Inconsistent Instructions.

The instructions must always be considered as a whole, but they must be consistent and harmonious, and where two instructions are given containing inconsistent or conflicting propositions, tending to confuse the jury, the cause will be reversed for the reason that the court is unable to determine which instruction the jury followed and which they ignored.

5. Appeal and Error--Objections Below--Insufficiency of Evidence.

Where the defendant has failed to demur to the evidence or request a directed verdict, the question whether there is sufficient evidence reasonably tending to support the verdict is not presented for review on plaintiff's motion for a new trial, and the evidence cannot be reviewed by the Supreme Court on appeal.

Monk & McSherry, for plaintiff in error.

I. S. Arnote, for defendant in error.

RUTH, C.

¶1 This action was filed in the district court of Pittsburg county, by the defendant in error, wherein he seeks to recover judgment for loss or destruction of an automobile, and the personal injuries sustained because of the acts of negligence of the plaintiff in error, defendant below, and for convenience the parties will be herein designated as they appeared in the trial court. Plaintiff alleges in his petition that defendant operates a street railway line in Pittsburg county, and particularly through the city of McAlester, in said county, and while plaintiff was driving his automobile across the defendant's tracks at Second and Electric avenue in the city of McAlester, the defendant's employes carelessly and negligently ran a street car at a rate of speed of 25 miles per hour into and upon the plaintiff's automobile, wrecking the same, and injuring plaintiff; that defendants servants failed to sound any signal when approaching the said crossing, and failed to slow down for the crossing, and by reason of the negligence of the defendant, the plaintiff sustained the injuries complained of, and prays judgment. Plaintiff sets forth the ordinance of the city of McAlester governing the movement of automobiles and street cars, and these ordinances provide that all motor vehicles and street cars, "when approaching a crossing, or rounding a curve or corner on a public street, shall sound a signal." The ordinance provides for a speed of 8, 10, and 20 miles per hour in certain specified districts, and as it appears the accident occurred in the district permitting a speed of 20 miles per hour it will be unnecessary to set out the ordinance at length. Defendant answered by general denial and for further answer, in the second paragraph, defendant specifically denies primary negligence on the part of the defendant, by alleging:

"That if the plaintiff and said automobile were damaged by reason of being so struck, the striking of said automobile and the damage to same and to the plaintiff in person were caused solely by the negligence of the plaintiff in that the plaintiff approached the track of the defendant driving his car at a high rate of speed upon a down grade and went upon the track of the defendant without first looking or listening to determine whether a car of the defendant was approaching said crossing; that plaintiff knew that defendant's cars were using said track at said crossing and running frequently cars thereon and knew or ought to have known that at the rate of speed at which he approached the crossing of defendant's track he could not stop his automobile in time to avoid a collision with defendant's car if defendant's car should be approaching or at said crossing as he, the plaintiff, went upon the same; that knowing these facts the plaintiff carelessly and negligently drove his automobile upon the defendant's tracks in such a way that he was unable after he had seen the approaching car of the defendant to stop his car and avoid a collision."

¶2 The third and fourth paragraphs of defendant's answer are in the following words and figures:

"Third: Defendant says that if the plaintiff's automobile was struck at the time and place as set out in plaintiff's petition by the defendant's car, and if the plaintiff's automobile and the plaintiff in person were injured at the time and place so set out, that said injury was caused by the negligence of plaintiff in this, to wit: That the law and ordinance of the city of McAlester attached to plaintiff's petition and marked exhibit 'A' provides in section 25 thereof that street cars shall have the right of way over all vehicles and that the plaintiff carelessly and negligently refused and failed at the time and place set out in his petition to allow such right of way to the defendant street car company for its cars but carelessly and negligently, without stopping or looking or listening to determine whether said street car was coming upon or to said crossing, went upon the same and carelessly and negligently stopped his automobile thereon in face of the approaching street car of the defendant in such a way that the agents of the defendant operating said street car were unable after discovery of plaintiff's automobile on said track to stop the said street car and avoid the collision.

"Fourth: Further answering defendant says that if the plaintiff's automobile, and if the plaintiff in person were injured at the time and place mentioned in plaintiff's petition, such injury to said automobile and to the plaintiff were caused by the contributory negligence and carelessness of the plaintiff in this, to wit: That the plaintiff came in his automobile at the high rate of speed toward and upon the track of the defendant without first attempting to discover the approaching car of the defendant; that by the exercise of ordinary care the plaintiff could have discovered said car of the defendant in ample time to stop his automobile before going upon the track of the defendant in front of the approaching car; that it was the duty of the plaintiff before going upon the track of the defendant to look and listen in order to determine whether or not the car of the defendant was approaching and it was the duty of the plaintiff under the laws and ordinance of the city of McAlester as pleaded in plaintiff's petition so to look and listen for approaching cars of the defendant before going upon defendant's track and to give the defendant the right of way at the crossing mentioned in plaintiff's petition; that plaintiff carelessly and negligently failed and refused so to do but that plaintiff carelessly and negligently drove his automobile at a high rate of speed upon a down grade upon the tracks of the defendant as the defendant's car was approaching and directly in front of defendant's approaching car and stopped his automobile upon said tracks directly in front of and in close proximity of the defendant's car so that the defendant had no time after discovering said automobile by the exercise of due diligence to stop its car and prevent the collision; that the plaintiff carelessly and negligently failed to drive his car across the track of the defendant before it was struck by defendant's car and carelessly and negligently attempted to reverse the engine of his automobile and back the same off said track when by continuing across said tracks he would have avoided the collision complained of."

¶3 After reply filed the cause was tried to a jury, and a verdict returned for the plaintiff, and from the judgment of the court the defendant appeals, and assigns the following as error: First, the trial court erred in overruling the motion for a new trial; second, the trial court erred in giving to the jury in his general charge, instructions numbered 5, 7, 13, 15, 16, 18 and 21; third, the trial court erred in refusing to give to the jury defendant's requested instructions numbered 11, 12, and 13; fourth, and fifth, that the verdict of the jury is not sustained by sufficient evidence and is contrary to law, that the verdict of the jury is contrary to and in disregard of the court's instructions.

¶4 The first objection urged by defendant, is to the giving of general instruction No. 5, in the following words:

"You are instructed that it is a violation of the ordinance of the city of McAlester for an automobile to travel in excess of 20 miles per hour in that part of the city in which the accident occurred, and in excess of eight miles per hour over a railroad or interurban railway crossing in said section of the city; and it is a violation of said ordinance for a street car to run in excess of 20 miles per hour in said section of the city, and said ordinance further provides that

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