Scritchfield v. Kennedy

• Citation: 103 F.2d 467
• Decision Date: 10 April 1939
• Docket Number: No. 1739.,1739.
• Parties: SCRITCHFIELD v. KENNEDY.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

103 F.2d 467 (1939)

SCRITCHFIELD v. KENNEDY.

No. 1739.

Circuit Court of Appeals, Tenth Circuit.

April 10, 1939.

John Ladner, of Tulsa, Okl. (H. G. McKeever, of Enid, Okl., and Ladner & Livingston, of Tulsa, Okl., on the brief), for appellant.

Ned Looney, of Oklahoma City, Okl. (Edgar Fenton, of Oklahoma City, Okl., on the brief), for appellee.

Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

The parties will be referred to in the order in which they appeared in the trial court, the appellant as plaintiff, and defendant as appellee.

Plaintiff (appellant) instituted this action against defendant (appellee) for damages occasioned to her by two automobiles colliding, she being a passenger for hire in the automobile driven by Newton W. Young, in collision with an automobile driven by defendant (appellee). Mrs. Minnie Cassel was also a passenger for hire in the Young automobile, which was a Ford sedan.

Young and his passengers, between 9 and 10 o'clock in the forenoon of November 29, 1936, left Fort Worth, Texas, en route to Tulsa, Oklahoma, intending to travel by Highway 77 north through Oklahoma City, Oklahoma. They stopped for lunch about 10 or 15 miles south of Wynnewood, Oklahoma, between 12 and 1 o'clock P. M., after which they continued on northward on said highway to about two miles south of Wynnewood, at a point 144 miles from Fort Worth and 163 miles from Enid, Oklahoma.

Whilst so driving, Young pulled over to the left side of the road to see if there was clearance to pass five or six cars traveling immediately ahead of him. At that time a car traveling in his rear pulled up on Young's right, cutting in ahead of him, but to the left of the said five or six cars traveling ahead on the right side of the road. About that time Young noticed the defendant coming southward over the top of a rise about 1,500 feet away, but was prevented from getting back on the right side of the road on account of the opening which he had vacated being filled. The defendant pulled out to his right on the shoulder of the road to avoid striking the car that cut in ahead of Young, and Young also pulled over to the left shoulder of the road, being the shoulder on the same side upon which defendant pulled out.

Defendant's and the Young car then collided. Four witnesses for plaintiff testified that defendant was traveling at a speed of 70 to 80 miles per hour. One witness for defendant estimated the speed of defendant's car from 50 to 55 miles per hour and another witness at from 40 to 45 miles per hour.

From a verdict and judgment for defendant the plaintiff appealed.

The court instructed the jury in part as follows:

"There are certain principles of law, so far as the highway is concerned, which are very definite. Under the statutes of Oklahoma regulating highway traffic, a person has a right to the right side of the highway. By that I mean, if he is going north, he has the absolute right to the right side or east side of that highway. If he is going south he has the absolute right to the right side or west side of the highway, subject to such exceptions as I shall state. One driving an automobile on the highway has the right to turn to his left in order to pass a car in front of him, by giving the proper signal, provided there are no cars approaching him from the opposite direction on the left side of the road, which would interfere with his occupancy of the road. However, one driving an automobile from the opposite direction has the undisputed right to his portion of the road and his occupancy of that portion of the road cannot be interfered with by one going in the opposite direction on the other side of the road.

"If you find from the evidence in this case, that the driver of the Young car, traveling north upon the highway near the point of the accident in this case, attempted to pass the cars in front of him by turning to his left, crossing the center line of the highway, and his occupancy of said highway, either on the highway itself or on the shoulder west of the center line of the highway, interfered with the use of the highway or shoulder by the Kennedy car coming south, then said act on the part of the driver of the Young car would constitute negligence.

"* * * if this defendant, driving his car from the north, saw another car immediately in front of him and on his side of the highway, that is west of the center line of the highway, and in order to pass said car it was necessary for him to drive upon the west shoulder of said highway, and in doing so if he believed, or under the circumstances had the right to believe that the driver of the Young car would follow the automobile immediately in front of the Young car, the defendant ran into the Young car, then said act of Kennedy would not constitute negligence. By that I mean if Kennedy was on the right side of the road where he had a right to be, and if there was a car immediately in front of him, approaching him, and there were cars on the east side of the highway approaching him, and it was necessary for him to get off the highway, and if he went off on this shoulder he had a right to do that, and neither of these other cars had a right to obstruct his passage in a southerly direction.

"Before you can find for the plaintiff in this case, you must find that the defendant was negligent, that is, that he did something which an ordinarily prudent person would not have done under the same or similar circumstances, and if you find that, in attempting to pass those cars occupying his portion of the highway, he did what an ordinarily prudent person would have done under the same or similar circumstances, then the plaintiff cannot recover.

"Of course, if you find the defendant wantonly and intentionally drove his car into the car in which the plaintiff was riding, that would be negligence and you must find for the plaintiff. * * *

"* * * negligence is the doing of something which an ordinarily prudent person would not have done under the same or similar circumstances, or negligence may consist of the failure to do what an ordinarily prudent person would have done under the same or similar circumstances.

"* * * one of the grounds of negligence alleged in plaintiff's petition is that the defendant was operating his automobile just prior to and at the time of the collision at an excessive rate of speed. You are instructed that the law of this state does not fix a speed limit, but provides that persons operating automobiles upon the public highway shall drive the same at a careful and prudent rate of speed, not more nor less than is reasonable and proper, having due regard for traffic, surface and width of the highway and the other conditions then existing.

"* * * when the driver of the motor vehicle is proceeding along a public highway in the exercise of due care under the existing circumstances, and is suddenly met with an emergency, which would naturally overpower the judgment of a reasonably prudent driver, and such driver uses in the emergency such care as a reasonably careful driver would use under the unusual circumstances to avoid an accident, such driver is not guilty of negligence. If you find, therefore, from the evidence that such an emergency did arise in this case, and that in the emergency the defendant used such care as a reasonably prudent driver would under the circumstances to avoid the collision, your verdict should be for the defendant.

"* * * however, that the negligence of Young, * * * cannot be imputed to the passengers in the Young car and the passengers in said car would not be held responsible for the acts of the driver. By that I mean merely because Young was negligent, would not make the passengers in the car negligent.

"* * * the rate of speed at which an automobile travels may or may not constitute negligence and the question of whether or not the speed of a car constitutes negligence is to be determined from all of the circumstances surrounding the case. In any event, even though you find that the defendant was driving at an excessive rate of speed, and that that rate of speed constitutes negligence on the part of the defendant, before you can find for the plaintiff you must find that this act of negligence, that is, this excessive rate of speed, if you find it to be negligence, was the proximate cause of the accident. By that I mean, although you find that the defendant was driving at a high rate of speed and that he was negligent, if you find that he was driving where he had a right to be, and on his own side of the road, and that if he believed or had a right to believe, under this evidence, that the car in which the plaintiff was riding, would not be on the shoulder of the highway at the time he was passing said point where the accident occurred, then the rate of speed would not constitute the proximate cause of the accident.

"* * * the term, `proximate cause', as used in these instructions, and as applied to this case, means that efficient cause, which unassisted by any intervening cause, produces the injuries complained of. However, an act to be the proximate cause of an injury does not necessarily have to be the sole cause, and in this connection you are instructed that in this case if the negligence of the defendant and the negligence of the driver of the Young car concurred to produce the plaintiff's injury, if any, so that it would not have happened in the absence of either, then the negligence of the defendant would be the proximate cause of the injuries, if any, plaintiff received at the time of the collision. * * *

"* * * if you find by a preponderance of the evidence that the driver of the Young car and the defendant were each guilty of negligence at the time of the collision and that such negligence of the driver of the Young car and of the defendant, concurred and was the proximate cause of the plaintiff's injuries, and that such collision and injuries would not have happened...