Thomason v. Pilger

• Decision Date: 01 March 2005
• Docket Number: No. 98281,98281
• Citation: 112 P.3d 1162,2005 OK 10
• Parties: NAOMI LEE THOMASON, Plaintiff/Appellant, v. RONALD M. PILGER, ALTERNATIVE TRANSPORT, INC., and GREAT WEST CASUALTY COMPANY, Defendants/Appellees.
• Court: Oklahoma Supreme Court

2005 OK 10

112 P.3d 1162

NAOMI LEE THOMASON, Plaintiff/Appellant, v. RONALD M. PILGER, ALTERNATIVE TRANSPORT, INC., and GREAT WEST CASUALTY COMPANY, Defendants/Appellees.

No. 98281

Supreme Court of Oklahoma

March 1, 2005

James E. Frasier, Frank W. Frasier, John Bogatko, Frasier, Frasier & Hickman, Tulsa, Oklahoma, for plaintiff/appellant.

Robert B. Mills, Dan K. Jones, The Mills Law Firm, Oklahoma City, Oklahoma, for defendants/appellees.

TAYLOR, J.

¶ 1 The question presented on certiorari is whether the trial judge erred in submitting the issue of plaintiff's contributory negligence to the jury? We answer in the negative.

I. Facts and Proceedings Below

¶ 2 This cause arises out of a collision between an automobile operated by Delmar Thomason and a heavy truck, a truck-tractor and semi-trailer (semi), operated by Ronald M. Pilger, defendant/appellee. Naomi Thomason, plaintiff/appellant, was a passenger in the automobile driven by her husband, Delmar Thomason. Pilger was driving the semi in the course of his employment with Alternative Transport, Inc., defendant/appellee. At the time of the collision, the semi was insured by Great West Casualty Company, defendant/appellee.

¶ 3 The collision occurred in rainy weather around 11:30 a.m. on April 25, 1999, in Pryor, Oklahoma. The following facts lead up to the collision. Delmar Thomason was driving west on S.E. 9th Street. He stopped at the red light at the intersection with U.S. Highway 69. While the light was still red, he entered the intersection, crossing the northbound lanes to turn left into a southbound lane of U.S. Highway 69. Pilger was driving north on U.S. Highway 69. He had the green light at the intersection with S.E. 9th Street. Pilger approached the S.E. 9th Street intersection as Delmar Thomason started across the northbound lanes of U.S. Highway 69 against the red light. Pilger's semi collided with Thomason's automobile in the intersection. Delmar Thomason was fatally injured and Naomi Thomason was severely injured.

¶ 4 Naomi Thomason sued Pilger, Alternative Transport, Inc. and the estate of Delmar Thomason, alleging that the negligence of each defendant caused her injuries. Subsequently, she added Great West Casualty Company as a party defendant. Naomi Thomason settled and dismissed with prejudice all claims against her late husband's estate. The other defendants answered, alleging, among other defenses, that the collision was caused by Delmar Thomason's negligence and Naomi Thomason's contributory negligence. The negligence claims against Pilger and Alternative Transport, Inc. were tried to a jury. At the conclusion of all the evidence, Naomi Thomason moved for a directed verdict on the issue of her contributory negligence. The trial court denied the motion and submitted all negligence issues to the jury. Without a specific finding of negligence of Naomi Thomason or Pilger, the jury returned an unanimous verdict in favor of Pilger and Alternative Transport, Inc. The trial court entered judgment on the verdict in favor of Pilger, Alternative Transport, Inc. and Great West Casualty Company.¹

¶ 5 Naomi Thomason appealed, raising error in two of the court's mid-trial rulings: 1) the overruling of an objection to the inquiry of the fact of the settlement with Delmar Thomason's estate; and 2) the overruling of the motion for a directed verdict on the issue of Naomi Thomason's contributory negligence. On the first error, the Court of Civil Appeals concluded that the trial court correctly exercised its discretion in allowing Naomi Thomason, on the witness stand, to answer whether she had settled her claim against her late husband's estate. Naomi Thomason did not seek certiorari review of the Court of Civil Appeals' decision on this issue. This issue is not before us. On the second error, the Court of Civil Appeals determined there was no evidence reasonably tending to show Naomi Thomason's contributory negligence and the issue should not have been submitted to the jury. The Court of Civil Appeals reversed the judgment of the trial court and remanded the cause for a new trial.

¶ 6 Defendants/appellees sought certiorari review. The certiorari petition urged review only of the question as to whether the trial court committed reversible error by submitting the issue of Naomi Thomason's contributory negligence to the jury. We previously granted the petition for writ of certiorari. We vacate that part of the opinion of the Court of Civil Appeals which decided the trial court erred in submitting the contributory negligence issue to the jury and leave the remainder undisturbed.

II. Standard of Review

¶ 7 The Court of Civil Appeals applied the standard for review of a denial of a motion for directed verdict, citing Myers v. Maxey, 1995 OK CIV APP 148, 915 P.2d 940, in deciding that the trial court erred in submitting the issue of Naomi Thomason's contributory negligence to the jury. Myers v. Maxey correctly stated the general standard of review of a denial of a motion for directed verdict whereby we examine the record for any evidence that reasonably tends to support a judgment for the party against whom the motion was made, Trent v. Oklahoma Gas & Electric Co., 1989 OK 54, ¶ 6, 775 P.2d 275, 277, disregarding all evidence in favor of the moving party, Woods v. Fruehauf Trailer Corp., 1988 OK 105, ¶ 8, 765 P.2d 770, 772. However, in light of art. 23, § 6 of the Oklahoma Constitution, this Court has fashioned a different evidentiary test for ruling on a motion for directed verdict on the issue of contributory negligence and standard for review of that ruling.

¶ 8 The Oklahoma Constitution, art. 23, § 6 provides that the "defense of contributory negligence . . . shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury."² Early jurisprudence construed this constitutional language to require the trial court to instruct the jury on contributory negligence whenever it is pleaded even in the absence of any supporting evidence. Miller v. Price, 1934 OK 332, ¶¶ 14-21, 33 P.2d 624, 627-28. Finding this early construction to be overly broad and to be potentially confusing to juries, Miller v. Price announced a minimal evidence test. Miller v. Price concluded that the constitution requires the contributory negligence defense be submitted to the jury if there is any evidence of an act, omission, or circumstance tending to prove contributory negligence or from which an inference of contributory negligence might be drawn. Id., 1934 OK 332, at ¶¶ 22-23, 33 P.2d at 628. Pleading the defense of contributory negligence alone will not warrant instructing the jury on the issue under Miller v. Price. However, it is only when there is no dispute of the facts and only one conclusion can be drawn therefrom that the trial court may decide the issue of contributory negligence as a matter of law. Kansas, O. & G. Ry. Co. v. Clark, 1953 OK 276, ¶ 17, 262 P.2d 426, 429. Under Miller v. Price, the issue of contributory negligence must be submitted to the jury if there is any evidence produced at trial, either by plaintiff or defendant, from which contributory negligence might be inferred. Denco Bus Lines, Inc. v. Rose, 1950 OK 241, ¶ 3, 224 P.2d 260, 260-61.

¶ 9 On appeal, consistent with the minimal evidence test announced in Miller v. Price, we review all the evidence presented to the jury and consider all inferences which may be reasonably drawn therefrom to determine whether the trial court should have submitted the question of contributory negligence to the jury. Clanton v. Mundell, 1935 OK 974, ¶ 5, 51 P.2d 760, 761. The withholding of the issue of contributory negligence from the jury will be affirmed only if there is a complete absence of proof of contributory negligence or circumstances from which contributory negligence may be inferred. Graham v. Keuchel, 1993 OK 6, ¶ 38, 847 P.2d 342, 358.

III. Contributory Negligence of a Passenger

¶ 10 Negligence is the want of ordinary care. 76 O.S.2001, § 5. Contributory negligence is an act or omission on the part of a plaintiff amounting to want of ordinary care which, together with the negligence of the defendant, is the proximate cause of the plaintiff's injury. Sloan v. Anderson, 1932 OK 782, 18 P.2d 274. While a passenger stands in a different position than a driver, a passenger must use ordinary care for his or her safety or "be open to the charge of contributory negligence". Stillwater Milling Co. v. Templin, 1938 OK 203, ¶ 13, 77 P.2d 309, 735. The settled rule in this jurisdiction is that a passenger in a moving vehicle must use ordinary care for his or her own safety, Matchen v. McGahey, 1969 OK 48, ¶ 25, 455 P.2d 52, 58; and in order to exercise ordinary care, the passenger may be required, by reason of all the circumstances involved, to caution the driver against the manner of the vehicle's operation or warn the driver of a dangerous condition. Id.

¶ 11 What act or omission of a passenger constitutes contributory negligence depends upon the facts and circumstances established in each case, and generally it is a question of fact to be decided by the jury under appropriate instruction. Id. 1969 OK 48 at ¶ 0, Syllabus by the Court, No.2; Hasty v. Pittsburg County Ry. Co., 1925 OK 576, 240 P. 1056, 1059. For instance, contributory negligence of the passenger was a question of fact to be determined by the jury where the passenger went to sleep, Rader v. Fleming, 1967 OK 104, ¶ 13, 429 P.2d 750, 752, when the passenger failed to caution about dangerous driving or watch for road hazards, Bradshaw v. Fields, 1977 OK 240, ¶ 10, 572 P.2d 552, 553-54, or when the vehicle was struck while crossing a railroad track, Kansas O.& G. Ry. v. Clark, 1953 OK 276, ¶ 17, 262 P.2d 426, 429. We have carefully reviewed the record, and although no witness testified about Naomi Thomason's acts or omissions, we cannot say there is a complete absence of proof of circumstances from which an...