Tulsa Ice Co. v. Wilkes

• Decision Date: 16 November 1915
• Docket Number: 5830.
• Citation: 153 P. 1169,54 Okla. 519,1915 OK 943
• Parties: TULSA ICE CO. v. WILKES.
• Court: Oklahoma Supreme Court

153 P. 1169

54 Okla. 519, 1915 OK 943

TULSA ICE CO. v. WILKES.

No. 5830.

Supreme Court of Oklahoma

November 16, 1915

Rehearing Denied Jan. 11, 1916.

Syllabus by the Court.

Although the case-made fails to show affirmatively that notice had been given of its settlement upon the date the same bears yet, if it appears from the certificate of the judge that the case-made was presented for settlement and signing "by the parties to said cause," and that amendments were duly suggested, and the casemade duly corrected, etc., the same will be considered.

A bicycle is a vehicle, within the meaning of section 7635, Rev. Laws 1910, which defines the rule of the road as regards the meeting of vehicles thereon.

Under section 7635, Rev. Laws 1910, it is the duty of travelers in vehicles, when meeting on the public roads or bridges, to each turn to the right of the center of the traveled part of the road; thus each yielding to the other a portion thereof so that they may pass without inconvenience.

Where travelers so meet, and one fails to yield a portion of the road, and such failure is the approximate cause of an injury to the other, ordinarily such failure would be actionable negligence; but such failure to turn to the right, thus yielding a portion of the road, is not always actionable negligence. Whether it is such must, in the very nature of things, and the diversity of situations likely to arise depend upon the circumstances existing at the time of the meeting. In other words, travelers, notwithstanding the rule are required, in a measure, to accommodate themselves to the situation presented.

Plaintiff entered a street and was traveling west on a bicycle, a light, easily controlled vehicle, and saw, two blocks away an ice wagon drawn by mules approaching him, and being driven slowly in the delivery of ice, along the north side and near the curbing of the street, which was 50 or 60 feet wide and smooth and level its entire width. On approaching the ice wagon he saw a space of 3 or 4 feet on the north, to the right of the wagon, and 40 or 50 feet of level street on the south, to the left of the wagon. He chose to undertake to squeeze a passage through the narrow space, rather than to use the wide, level, and unobstructed portion of the street to the left. In doing so he lost his equilibrium and fell against the wagon, which, but for his loss of balance, would not have touched him. Held, that plaintiff cannot recover, because he has failed to show actionable negligence upon the part of defendant, and that it was the proximate cause of his injury.

Commissioners' Opinion, Division No. 1. Error from Superior Court, Tulsa County; M. A. Breckinridge, Judge.

Action by John H. Wilkes against the Tulsa Ice Company. Judgment for plaintiff, and defendant brings error. Reversed and dismissed.

Dillard & Blake, of Tulsa, for plaintiff in error.

Biddison & Campbell, of Tulsa, for defendant in error.

BREWER C.

We are met at the threshold of this case with a motion to dismiss the appeal, which we will first proceed to dispose of. The motion sets up two grounds:

(1) That the notice to settle was served before the time had expired for suggesting amendments, and that it did not give the five days' notice allowed by the court. It was not objectionable to serve the notice while the time for suggesting amendments was running (Frey v. McCune [No. 7388] 153 P. 109, recently decided, but not yet officially reported), but the court would be without authority to settle the case-made before the time for suggesting amendments had elapsed (State ex rel. Davis v. Wheelor et al. [ No. 7670] 152 P. 1087, recently decided, but not yet officially reported); and, had this case been so settled prior to the expiration of the time allowed for suggesting amendments, the point would be well taken. This was not the case, as will appear in discussing the next point.

(2) The second ground is that the notice was that the case would be presented for settlement on October 13, 1913, and that it shows to have been settled on October 23, 1913, without a showing of the absence or inability of the judge to settle it on the date called for in the notice, or that for any such or other cause the settlement had been postponed. This would likely be fatal also but for the fact that in settling the case the judge certifies:

"The foregoing case-made and the amendments thereto have been duly served in due time, and amendments thereto duly suggested, and the same duly submitted to me for settlement and signing, as required by law, by the parties to said cause; that the same, as above set forth and as corrected by me, is true and correct," etc.

So this case-made stands as settled after the time allowed for suggesting amendments had passed, but without a sufficient notice of the time and place of its presentation to the judge for settlement. But, inasmuch as it appears that it was submitted "by the parties to said cause," and that "amendments thereto [were] duly suggested," and the same, "as corrected by me," is true and correct, etc., would, under decisions creating exceptions to the general rule as to notice, dispense with the necessity of notice.

This court, in the case of First National Bank v. Daniels, 26 Okl. 383, 108 P. 748, after discussing the case of Ft. Smith & W. Ry. Co. v. State Nat. Bank of Shawnee, 25 Okl. 128, 105 P. 647, and section 233 of Burdick's Work on New Trials and Appeals, in which is stated the general rule as to notice of the time of settling the case-made, notes that there are exceptions to the same, and in the discussion thereof says:

"There are exceptions to the general rule as stated in the language of the text. Kansas Farmers' Mutual Fire Ins. Co. v. Amick, 36 Kan. 99, 12 P. 338, illustrates the exception. In that case it was held that, although the record did not affirmatively show that notice had been given of the time when the case would be settled and signed, if it appeared that amendments were suggested by defendant in error all of which had been allowed, defendant could not complain of want of notice; or, if some of the amendments which had been suggested had been disallowed and were immaterial, he could not complain."

After continuing the discussion and citing the holdings of the Kansas courts, Mr. Justice Hayes further says:

"We think that the rule so as to include the exceptions may be stated as follows: A casemade which has been signed and settled without notice to defendant in error of the time and place of signing and settling same will not be considered, unless it appears: First, that defendant has waived such notice or appeared in person or by counsel at the time and place of settling same; second, that defendant suggested amendments all of which were allowed; third, that defendant suggested amendments all of which were allowed, except those that were immaterial. Christie v. Carter, 56 Kan. 166, 42 P. 708."

We think this case comes within the exceptions noted above, and that the second point of the motion to dismiss is likewise not well taken; and the motion to dismiss the appeal is therefore overruled.

Now, coming to consider the case on its merits, we find that on the 2d day of December, 1911, John H. Wilkes, defendant in error, filed his suit in the district court of Tulsa county against the Tulsa Ice Company, a corporation. For his cause of action he alleged that on or about the 26th day of September, 1911, he was, with due care, traveling westward upon a certain vehicle, to wit, a bicycle, along Burnett avenue between Owasso and Peoria streets, in the city of Tulsa; that defendant was then and there the proprietor of a certain ice wagon and team of mules which were, in the ordinary course of its business of selling and delivering ice, then and there being driven along said highway by defendant's servants in an easterly direction; that defendant and its servants were negligent, in that they carelessly, negligently, and wantonly, without regard to the safety of the plaintiff, drove said vehicle and mules, upon meeting plaintiff, upon the north side of said highway or road, the same being to the left of traveled part of such highway or road for the defendant, and being to the right of such traveled highway or road for the plaintiff, in such a manner that plaintiff was not able to pass said wagon and mules without interfering, etc.

Plaintiff's case--that is, the question of defendant's liability, if any exists--is to be determined from the evidence given by plaintiff, parts of which follow:

"Q. You may state how it happened. A. Well, I was coming down to my business early in the morning. Q. Which way were you going? A. Going west, coming down to the city, as I had been accustomed to do for some time, in passing up and down on my bicycle, and I looked down ahead of me for a couple of blocks or more, and I saw the ice wagon coming up, and it was on the north side of the street, and I was coming down on the north side, and I ran on down, and I thought perhaps they would give me a little road, as they kept into the curb pretty close, and I slowed my machine down, and they didn't pay no attention to me, and when I got there I thought to myself I would try and run around them, but my machine was slowed down, and it wasn't rough, and I went to go around them, the machine stopped, and I lost my equilibrium, and I fell over into the wheel. Q. Now whereabouts on the road was this wagon? A. It was on the north side of the street. Q. How far from the middle, on the north? Describe. A. Well, it was within about three or four feet of the curb, on the north side. Q. Which direction were they going in? A. They were going on east, I should say. Q. You were coming west? A. I was going west. Q. And it was on Burnett street or avenue?

...