Smith v. Clark
| Citation | 1926 OK 648,125 Okla. 18,256 P. 36 |
| Decision Date | 27 July 1926 |
| Docket Number | Case Number: 16411 |
| Parties | SMITH et al. v. CLARK. |
| Court | Supreme Court of Oklahoma |
¶0 1. Negligence--Demurrer to Plaintiff's Evidence as to Causal Effect.
A demurrer to plaintiff's evidence in a personal injury action ought to be sustained, unless it is reasonably apparent that the injury suffered by the plaintiff is the causal effect from some wrongful act of the defendant, in violation of a legal duty owing to the plaintiff.
2. Negligence -- Essentials of Actionable Negligence.
To constitute "actionable negligence," where the wrong was not willful or intentional, three essential elements are necessary: (1) The existence of a duty on the part of the defendant to protect the plaintiff from injury. (2) Failure of the defendant to perform that duty. (3) Injury to the plaintiff proximately resulting from such negligence to perform that duty.
3. Highways--Driver's Duty to Watch Car Ahead.
A driver of an automobile on a public road, upon approaching another automobile from the rear, must look out for the man ahead and must have his machine well in hand to avoid injuring the car ahead, so long as the man ahead is driving in accordance with his rights.
4. Same--Turning to Left on Highway Without Signaling--When not Negligence.
Where two automobiles were travelling in the same direction along a public highway, and the rear car attempted to pass the first one just as it was turning to the left out of the highway and was injured, the driver of the front car was not guilty of negligence in turning to the left without signaling, if he did not know of the approach of the rear car.
5. Same--Demurrer to Plaintiff's Evidence Proper.
Record examined; held, that the overruling of the defendants' demurrer to the plaintiff's evidence was reversible error.
Commissioners' Opinion, Division No. 5.
Error from District Court, Tulsa County; Z. I. J. Holt, Judge.
Action by Hattie Clark, defendant in error, plaintiff below, against Charles T. Smith, doing business as Smith Sand Company, and F. M. Figg, plaintiffs in error, defendants below, to recover damages. Judgment for plaintiff. Defendants bring error. Reversed, with instructions.
Bicking & Wilson, for plaintiffs in error.
E. M. Connor, for defendant in error.
¶1 This action was commenced in the district court of Tulsa county by Hattie Clark, defendant in error, plaintiff below, against Charles T. Smith, doing business as Smith Sand Company, and F. M. Figg, plaintiffs in error, defendants below, to recover damages for personal injury and damages to her car on account of collision on a public road.
¶2 The parties will be referred to as plaintiff and defendants as they appeared in the lower court. The record shows that plaintiff was the owner of a Ford sedan automobile and was driving the same along the public highway between Tulsa and Sand Springs, Okla.; that the defendant F. M. Figg was driving a truck, owned by the Smith Sand Company, ahead of plaintiff and in the same direction that the plaintiff was driving; that there was a road leading from the paved highway, upon which they were traveling, at right angles to said highway, leading down to the plant of the defendant sand company; that as said truck approached the road, turning down to the company's plant, the driver thereof turned to the left to enter said road and that plaintiff's car ran into the left rear part of defendant's truck, thereby damaging plaintiff's Ford sedan, smashing the fender and hood, breaking the hangar of the engine, the steering wheel, the glass windshield and other minor parts of the car, cutting plaintiff's left knee, bruising her right limb and injuring other parts of her body, from which she claims to have received permanent injuries, incapacitating her from performing her ordinary household duties, and from which she suffered and is still suffering great pain, and that she incurred expenses for medical treatment and incurred expenses for repairing her car, and prayed judgment in the sum of $ 50,300.
¶3 To the petition the defendant filed a general demurrer, which was overruled and exception reserved, and the defendants then filed their answer by way of general denial, pleaded contributory negligence, and as further answer alleged that defendants were driving a heavy truck in plain view of the plaintiff; that the truck made a great deal of noise and in spite of the fact that said truck was in plain view of all persons on the road that plaintiff negligently, recklessly, and without any regard for her own safety or the safety of others drove her car into said truck, belonging to the defendants; that the plaintiff immediately after the accident stated to one of the defendants that she had had another accident in the city of Tulsa less than an hour before and that she was not hurt or injured other than injuries received in the accident in the city of Tulsa, and prayed that plaintiff take nothing, and that defendants be discharged with their costs.
¶4 The plaintiff replied by way of general denial and upon these issues the cause proceeded to trial before a court and jury, and at the close of the testimony on part of plaintiff the defendants filed a demurrer to the sufficiency of the evidence to support plaintiff's claim for damages, which demurrer was overruled and defendants excepted, and at the close of all the evidence in the case the defendants moved the court to instruct the jury to render a verdict for the defendants and each of them, which motion was denied and exception reserved. Nine members of the jury returned a verdict into court in favor of the plaintiff and against the defendant that she recover the sum of $ 2,500.
¶5 After an unsuccessful motion for new trial, filed by the defendants, the court pronounced judgment upon the verdict of the jury and the cause comes regularly upon appeal by the defendants to this court for review of said judgment, and they assign as grounds for reversal that the court erred in overruling the motion for new trial; in overruling the demurrer of defendants to the petition of plaintiff; in overruling the demurrer to the evidence of plaintiff and overruling motion of defendants for an instructed verdict in their favor; that the evidence was insufficient to sustain the verdict; the admission of certain testimony on part of the plaintiff; misconduct of counsel; and that the verdict is excessive.
¶6 In passing upon the merits of this case, in our opinion, it will be necessary to review the evidence most favorable to the plaintiff and from that determine whether there was such primary negligence on part of the driver of defendant's truck that would entitle the plaintiff to recover in this cause. The plaintiff's evidence is that she was traveling along the public highway behind defendant's truck, and the truck is shown to be a heavy metal-bodied truck for hauling sand for the defendant company and was empty going to the plant for a load of sand; that the road to defendant's plant adjoined the highway at right angles on the left side of the highway; that neither of the parties was driving at an unlawful rate of speed, the plaintiff probably going 15 miles an hour and the truck going six or seven miles an hour; that plaintiff desired to pass the truck; that she put her hand upon the horn of her enclosed Ford sedan and held her hand upon the horn 50 or 75 feet, and that the driver of the truck never showed any sign that he intended to turn; that the driver of the truck, as the plaintiff approached from the rear, turned the truck to the left, the front part of the same, at the time of the collision, being off the paved road and into the road leading to the defendant's plant, and plaintiff's car ran into the left side of the rear end of the truck, her car being struck about the middle of the hood, causing the damage to the car, heretofore stated, and the injury to plaintiff's person. Plaintiff testified that she could not tell just how much noise the truck was making, but she knew it was making a lot of noise as she could hear it; that she was not, at the time,...
To continue reading
Request your trial