Teague v. United Truck Service

• Decision Date: 20 June 1972
• Docket Number: No. 43904,43904
• Citation: 499 P.2d 380
• Parties: William L. TEAGUE, Appellant, v. UNITED TRUCK SERVICE, Francis J. Tolbert, Owner, and Ray Evans Johnson, Appellees.
• Court: Oklahoma Supreme Court

Page 380

499 P.2d 380

William L. TEAGUE, Appellant, v. UNITED TRUCK SERVICE, Francis J. Tolbert, Owner, and Ray Evans Johnson, Appellees.

No. 43904.

Supreme Court of Oklahoma.

June 20, 1972.

Dick Bell, Seminole, Horsley, Epton, Culp & Butts, Wewoka, Frank Seay, Seminole, for appellant.

Bishop & Wantland, Seminole, for appellees.

BARNES, Justice.

This appeal arose out of an action brought by the above named Appellant against the above named Appellees to recover damages allegedly sustained in a collision between his 1960-Model Mercury Station Wagon and a 1967-Model 'bobtailed' White diesel tandem truck owned and/or operated by Appellees. The parties will hereinafter be referred to by surname and/or trial court designations of 'plaintiff' and 'defendants'.

Just before the collision, at about 4:30 p.m., of a rainy October day, the truck, driven in a southerly direction by the defendant Johnson, came up behind plaintiff's station wagon, traveling the same direction, on State Highway No. 59, approaching Salt Creek bridge some 3 miles northeast of St. Louis, Oklahoma. The plaintiff stopped, or almost stopped, his vehicle just north of the bridge because a pedestrian, followed by a Chevrolet, was attempting to drive a calf across the bridge from the south. As the truck overtook plaintiff's vehicle, defendant Johnson applied his brakes and veered off to the right of the roadway, but the left rear corner of his truck's tail board struck the station wagon's right rear corner. The Chevrolet was driven by a Mrs. Rosturn and the calf was being herded on foot in front of it by Mrs. Rosturn's younger brother, Luther Martin.

After the collision, plaintiff complained of personal injuries and was taken to a Seminole hospital. A Highway Patrolman, Mr. Don Kirk, investigated the accident.

In his petition, plaintiff alleged that as a result of the collision he was damaged in the amount of $264.05 for the repair of his station wagon, and $113,578.20 for personal injuries. He also alleged that the defendant was negligent in his failure to keep a proper lookout ahead of the truck, his truck's following the station wagon too closely in violation of 47 O.S.1961, § 11--310, and the driving of the truck at a speed greater than would permit it to be brought to a stop 'within the assured clear distance ahead' in violation of 47 O.S.1961, § 11--801.

In their answer, defendants alleged that negligence of plaintiff in stopping his vehicle on the traveled portion of the highway in violation of Oklahoma Statutes caused, or contributed to, the happening of the accident. As a further defense, defendants alleged that the defendant driver, Johnson, was confronted with a sudden emergency and that he acted in said emergency as any reasonable or prudent person would have done.

Subsequently, defendants moved that Mrs. Rosturn and Luther Martin be made additional defendants in the case, and, after their motion was denied, filed an amended answer in which they alleged that the primary cause of the accident was the combined negligence of those parties in driving the calf across the bridge in the face of oncoming traffic, and plaintiff's negligence 'in stopping his automobile on the traveled portion of the highway and in not keeping a lookout to his rear.'

At the trial, it was established that on the day of the accident it was raining and the highway, a 2-lane asphalt or black-topped one, 22 feet wide, was slick. Defendant Johnson testified that he saw plaintiff's station wagon and Mrs. Rosturn's Chevrolet when his truck was 400 feet away, but, despite his truck's speed of only 40 miles per hour and brakes in good condition, because of his truck's skidding on the slick pavement when its brakes were applied, he was unable to stop it before reaching the rear of plaintiff's station wagon. Johnson further testified that when he realized he could not completely stop the truck in that distance and that Mrs. Rosturn's Chevrolet was approaching in the other traffic lane, he ran his truck off the embankment just behind the station wagon in an effort to avoid colliding with either. He claimed the truck was not traveling over 3 or 5 miles per hour at the time it struck the station wagon's right rear corner. Johnson was examined about a deposition he had given earlier in which he stated, among other things, that he was 8/10ths of a mile from plaintiff's station wagon when he first saw it near the bridge and started applying his truck's brakes. During the witness' redirect examination, however, it was shown that in another part of his deposition he stated that he had been confused and had mistakenly stated the distance was 8/10ths of a mile when he intended to say it was 1/10th of a mile. Johnson further testified that he had ascertained the distance of 400 feet by a measurement he made after the accident. The Highway Patrolman, Kirk, testified, among other things, that when he came to investigate the accident, Johnson told him that, as he drove down the hill approaching the bridge, he didn't realize the station wagon had stopped, until it was too late to avoid hitting it.

According to plaintiff's evidence, he had not stopped the station wagon, but was driving it very slowly toward the bridge's north end at the time it was struck from the rear by the truck. Plaintiff's testimony was to the further effect that he did not see the truck behind his station wagon until the collision occurred.

Mrs. Rosturn was a witness for the defendants and testified that, as she drove her Chevrolet north across the bridge behind her 19-year-old brother, Luther Martin, and the calf, plaintiff's station wagon was in the traveled portion of the highway approaching the bridge from the north. She further testified that she did not see the station wagon move as the truck came up behind it and nosed into the ditch, and did not think it had been struck. Her testimony tended, in general, to support Johnson's testimony that plaintiff's station wagon was boosted forward no more than 5 feet, if any, by the collision's impact. With toy cars, this witness demonstrated to the jury the positions of the station wagon and the truck when the collision occurred. She also testified, without objection, that she and her older brother, the calf's owner, had discussed the likelihood of his responsibility for the accident. Much of defendants' evidence was calculated to show that plaintiff's physical disability, if any, was the result of previous accidents he had had.

At the close of the evidence, both parties moved for a directed verdict. Plaintiff's motion was specifically predicated on the ground that the evidence showed that the truck driver, Johnson, had been guilty of negligence per se in failing to stop his truck within the assured clear distance ahead, in violation of the Oklahoma Statute, supra. The court denied both motions for directed verdicts and submitted the cause to the jury under instructions, which included its Instruction No. 15 on unavoidable accident. Thereafter, the jury returned a general verdict for defendants, and judgment was entered accordingly. After...