Townsend v. Cotten

• Decision Date: 25 May 1937
• Docket Number: Case Number: 27160
• Citation: 180 Okla. 128,1937 OK 347,68 P.2d 790
• Parties: TOWNSEND v. COTTEN
• Court: Oklahoma Supreme Court

1937 OK 347

68 P.2d 790

180 Okla. 128

TOWNSEND v. COTTEN

Case Number: 27160

Supreme Court of Oklahoma

Decided: May 25, 1937

Syllabus

¶0 1. AUTOMOBILES - Statutory Provision as to Speed on Highways.

Section 14, chapter 113, S. L. 1933, amending section 10323, O. S. 1931, fixes no definite speed limit for vehicles operated upon the highways, except for such vehicles as are used for the transportation of passengers for hire, but imposes upon drivers using the highways the duty of driving at a careful and prudent rate of speed not greater nor less than is reasonable and proper, having due regard for the traffic, surface, and width of the highway and of any other conditions then existing.

2. APPEAL AND ERROR - Sufficiency of Evidence to Support Verdict.

In a civil action, triable by a jury, where there is competent evidence reasonably tending to support the verdict of the jury, and no prejudicial error of law is shown in the instructions of the court or its rulings on law questions, the verdict and findings of the jury will not be disturbed on appeal.

3. TRIAL - Order of Evidence - Statute.

The party on whom rests the burden of the issues may first produce his evidence; the adverse party shall then produce his evidence: and the only evidence that either party may thereafter introduce, as a matter of right, is rebutting evidence.

4. SAME - "Rebutting Evidence" Defined.

"Rebutting evidence" is that evidence which has become relevant or important only as an effect of some evidence introduced by the other side.

Appeal from District Court, Ottawa County; Ad V. Coppedge, Judge.

Action by Harrel W. Townsend against D.H. Cotten. Judgment for defendant, and plaintiff appeals. Affirmed.

Wm. M. Thomas, for plaintiff in error.

D.H. Cotten and Ray McNaughton, for defendant in error.

CORN, J.

¶1 This is an action for damages for personal injuries alleged to have been sustained in an automobile accident. The plaintiff was riding as a guest in defendant's car at the time the accident occurred. The cause was tried to the jury, resulting in a verdict for the defendant, and the court rendered judgment on the verdict, from which judgment the plaintiff appealed. The parties occupy the same position on appeal as in the trial court and will be referred to herein in the same order.

¶2 The plaintiff complains that the court erred in refusing to give plaintiff's requested instruction No. 3, stating in effect that if the jury found that the defendant was driving the car in violation of the statute at the time the accident occurred in which the plaintiff was injured, such violation of the statute constituted negligence per se.

¶3 It appears from the record that the court sufficiently covered the plaintiff's theory of the case in the instruction given, as the essential allegations of plaintiff's petition were incorporated in the instructions, and the court charged the jury that if it found from a preponderance of the evidence that the defendant was negligent as contended in the operation of the car, or in his failure to have the car in reasonable shape for use on the highway, and was driving at an excessive rate of speed under the conditions then existing, and that this negligence on the part of the defendant was the proximate cause of the injury and damages to the plaintiff, then a verdict should be returned in favor of the plaintiff.

¶4 The fact that the court's instructions did not state that if the jury found the defendant was negligent as alleged in the petition, such negligence would constitute negligence per se, is of little or no significance at all in view of the provisions of the statute. Our so-called speed statute is section 14, ch. 113, S. L. 1933, amending section 10323, O. S. 1931, which, in so far as is applicable to this case, provides:

"Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead. Provided, no motor bus or other motor vehicle transporting passengers for hire shall be driven upon any public highway of this state at a rate of speed in excess of forty-five (45) miles per hour. * * *"

¶5 It will be noted that our speed statute fixes no definite speed limit, except for such vehicles as are used for transporting passengers for hire, but imposes upon drivers using the highways the duty of driving at a careful and prudent rate of speed not greater nor less than is reasonable and proper, having due regard to the traffic, surface, and width of the highway and of any other conditions then existing. Whether a driver is guilty of excessive speed depends upon the conditions specified or contemplated in the statute, and is a question of fact for the jury. The driver must necessarily be found guilty of negligence, or negligent driving, before he can be found guilty of violating the statute. The instructions as a whole fairly state the law of the case, and fairly present the theory of the case of both parties, and we find no material error in any...