Rowton v. Kemp

• Decision Date: 12 May 1942
• Docket Number: Case Number: 30175
• Citation: 190 Okla. 558,1942 OK 187,125 P.2d 1003
• Parties: ROWTON et ux. v. KEMP
• Court: Oklahoma Supreme Court

1942 OK 187

125 P.2d 1003

190 Okla. 558

ROWTON et ux. v. KEMP

Case Number: 30175

Supreme Court of Oklahoma

Decided: May 12, 1942

Syllabus

¶0 1. TRIAL--Refusal of instruction limiting application of impeaching evidence, when not error.

It is not error to refuse an instruction limitingevidence introduced on impeachment where the evidence introduced related wholly to a matter of conclusion or an immaterial issue in the proceeding.

2. AUTOMOBILES--Action for damages for wrongful death of pedestrian--Instruction on issue of unavoidable accident proper where justified by evidence.

The court is authorized to instruct on the issue of unavoidable 'accident whenever the evidence introduced on the trial would justify a finding on such issue.

Appeal from District Court, Le Flore County; Wm. S. Hall, Judge.

Action in damages for wrongful death by Wiley R. Rowton and another against W. O. Kemp. From a judgment for the defendant, plaintiffs appeal. Affirmed.

Varner & Varner, of Poteau, for plaintiffs in error.

Julian B. Fite, of Muskogee, for defendant in error.

PER CURIAM.

¶1 This is an action brought by Wiley R. Rowton and Rosie Lee Rowton, parents of Melton Rowton, hereinafter referred to as plaintiffs, against W. O. Kemp, hereinafter referred to as defendant, seeking damages for the wrongful death of their son, Melton Rowton, who was struck by an automobile on the highway on the afternoon of January 3, 1939, and as a result of the injuries died on January 8, 1939.

¶2 The evidence discloses that Melton Rowton, of the approximate age of seven years, was riding in a farm wagon and when he had reached the neighborhood of his home, about one-tenth of a mile east of Forrester school, he left the wagon and started across the road north toward the direction of his home, when he was struck by the rear portion of an automobile driven by the defendant and sustained the injuries which resulted in his death. Only one witness saw the accident, although there were at least five persons in the wagon. This witness testified that Melton Rowton struck the rear fender of the automobile driven by the defendant.

¶3 After a trial to the jury a verdict was rendered for the defendant, following which judgment was entered thereon.

¶4 The plaintiffs have appealed and present two allegations of error under two propositions in the argument.

¶5 It is first urged that the court erred in refusing to submit an instruction limiting certain evidence introduced to contradict the testimony of Lon McClain, a brother of the owner and driver of the farm wagon, testifying for the plaintiff. He stated that he did not see the accident but heard the impact of the automobile and the body of Melton Rowton. On cross-examination, after detailing the circumstances subsequent to the accident, he was asked if he did not state to the witness Buck Wright that the accident was unavoidable. To this question he answered no. Subsequent to his testimony the defendant introduced Buck Wright, who was permitted to testify without objection that the witness Lon McClain stated to Buck Wright, in substance, that he was of the opinion that the accident was unavoidable. We hold there was no error in the refusal of the court to limit by an instruction the evidence on this question by defining the nature, extent, and purpose of impeaching testimony. Plaintiff has cited a number of authorities holding that where a witness is impeached on a material question at issue, it is proper for the trial court to give an instruction limiting the consideration of impeaching testimony to that purpose alone. We have so held. See Monahan v. Cornelson, 134 Okla. 95, 231 P. 1071; De Camp v. Comerford, 134 Okla. 145, 1272 P. 475; also, C. J. vol. 70, p. 1153, § 1139. However, plaintiffs cite in support of this proposition Foreman v. State, 38 Okla. Cr. 50, 259 P. 176. Therein the court said:

"The impeaching of a witness in such case rests largely in the sound discretion of the trial court. When a contradictory statement is admitted, the trial court should limit and restrict the application of such testimony to impeachment only, but the failure to do this is not necessarily reversible error. Jones v. United States, 14 Okla. 356, 78 P. 100."

¶6 The witness McClain was asked a question which required at the most a statement of his opinion. Conceding that the answer may have been in a sense material to the issues involved, he was not impeached on a question of fact but simply upon a matter of opinion. See, in this connection, Midland Valley R. Co. v. Ogden, 60 Okla. 74, 159 P. 256.

¶7 It is next urged that the court erred in giving an instruction on unavoidable accident. In this connection plaintiffs allege that this court has held in Yellow Taxicab & Baggage Co. v. Alsup, 175 Okla. 332, 52 P.2d 724, that it is error to instruct on the issue of unavoidable accident unless the defendant has pleaded and proved such a set of circumstances as would justify a jury in finding an unavoidable accident. We cannot agree that this question has been so determined by our court. In Yellow Taxicab & Baggage Co. v. Alsup, supra, the court was considering the error of the trial court in relation to an instruction on...