Tulsa Yellow Cab, Taxi & Baggage Co. v. Salomon
| Decision Date | 11 January 1938 |
| Docket Number | 27359. |
| Citation | 75 P.2d 197,181 Okla. 519,1938 OK 21 |
| Parties | TULSA YELLOW CAB, TAXI & BAGGAGE CO. v. SALOMON. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. In the voir dire examination of jurors in a personal injury case, counsel for plaintiff may interrogate prospective jurors with respect to their interest in or connection with indemnity insurance companies, so long as he acts in good faith for the purpose only of ascertaining the qualifications of the jurors, and not for the purpose of informing them that an insurance company is back of the defendant. Beasley v Bond, 173 Okl. 355, 48 P.2d 299.
2. What is or is not negligence is ordinarily a question for the jury and not the court. Where the standard of duty is not fixed but variable, and shifts with the circumstances of the case it is incapable of being determined as a matter of law and where there is sufficient evidence, must be submitted to the jury to determine what it is and whether it has been complied with. Interstate Compress Co. v. Arthur, 53 Okl. 212, 155 P. 861.
3. Photographs purporting to depict the condition of a taxicab at the time of accident, taken nine months thereafter, may be admitted as evidence if it is proven or admitted that the cab is in the same condition as it was at the time of the accident. St. Louis & S. F. Ry. Co. v. Dale, 36 Okl. 114, 128 P. 137; Massey v. Ivester, 168 Okl. 464, 33 P.2d 765; Federal Life Ins. Co. v. Firestone, 159 Okl. 228, 232, 15 P.2d 141.
4. A carrier of persons for reward must use the utmost care and diligence for their safe carriage; must provide everything necessary for the purpose and must exercise to that end a reasonable degree of skill and must provide vehicles safe and fit for the purpose to which they are put, and is not excused for default in this respect by any degree of care; and must give to passengers all such accommodations as are usual and reasonable, together with a reasonable degree of attention.
5. Whether driver of the taxicab under the facts in this case owed a duty to assist departing passenger in alighting was a question for the jury under proper instructions.
6. Where a question of fact is submitted to a jury on issues joined by the pleadings, and there is evidence reasonably tending to support the verdict, the same will not be disturbed in this court on appeal. St. Louis & S. F. Ry. Co. v. Dale, 36 Okl. 114, 128 P. 137.
Appeal from District Court, Tulsa County; Thurman S. Hurst, Judge.
Action by Nona A. Salomon against the Tulsa Yellow Cab, Taxi & Baggage Company and another, for personal injuries sustained in fall while alighting from taxicab owned and driven by the defendants. From a judgment for plaintiff and from an order overruling a motion for a new trial, the defendants appeal.
Affirmed.
Hudson & Hudson and T. A. Aggas, all of Tulsa, for plaintiffs in error.
Milsten & Milsten, of Tulsa, for defendant in error.
Plaintiff sued the defendants to recover damages in the sum of $25,903.65 for personal injuries alleged to have been sustained as a result of a fall while attempting to alight from defendant's taxicab. The jury returned a verdict for plaintiff for $1,500. Defendants appeal.
The acts of negligence charged are substantially as follows: That the plaintiff engaged the cab for transportation from the Mayo Hotel to the Community Fund Building in Tulsa. During the drive, and at the time of their arrival at her destination, a heavy rain was falling; that the cab was not equipped with an arm guard for the convenience and safety of passengers in leaving the cab; that in alighting from the cab she extended her foot to the right-hand running board of the cab; that the cab was in a sloping position and the running board was worn smooth and slick and was in a poor state of repair and was slippery from the rain; that her foot slipped from the running board toward the pavement, and that the heel of her left shoe caught on a loose metal strip attached to the frame of the cab underneath the door; that she was suspended in this position momentarily and finally fell to the street in such a manner that her left foot and leg were underneath her body; that at the time plaintiff was 51 years of age, was 5 feet and 2 inches tall, and weighed about 168 pounds; that in such fall she suffered severe and painful injuries and was forced to leave her employment and be placed in a plaster cast under the care and treatment of a physician; and that her injuries are permanent.
Plaintiff further alleges that said injuries were received because of the failure of defendants to furnish her reasonably safe means of transportation and the failure to maintain the cab in a reasonably safe condition for conveying passengers and with failure to exercise due diligence in assisting plaintiff to alight from the cab.
The defendant answered by general denial and by plea of contributory negligence. Errors assigned by the plaintiffs in error are grouped under the following heads: (1) Error of the court in not declaring a mistrial upon the examination of jury on their voir dire; (2) error of the court in overruling defendants' motion to strike, in that there was no duty upon the part of the defendants to assist the plaintiff from the cab; and (3) the admission of incompetent, irrelevant, and immaterial testimony, particularly as to the picture of the cab taken in December, 1935. The errors assigned will be disposed of in their order.
In the voir dire examination, counsel for plaintiff asked the jurors the nature of their business. One of the jurors said that he was in the insurance and casualty business. The remaining jurors were then asked if they were, or had been, in the insurance business. Counsel for defendants requested the court to declare a mistrial on the ground that the statement was prejudicial and disqualified the jury from service in the trial of the case. In reply to an inquiry of the court as to the purpose of the question, counsel replied: "The purpose of asking the question was to ascertain whether or not I had any member of this jury who were engaged in the casualty insurance business, so that I would be able to intelligently and properly exercise my peremptory challenge, because the attorneys for the defendant in this case is covered by insurance, and I asked the question to find out whether or not I had anybody on the jury that might represent the defendant's insurance company."
The foregoing proceeding was had out of the presence of the jury. We find no error in the court's refusal to declare a mistrial. Beasley v. Bond, 173 Okl. 355, 48 P.2d 299.
In support of an allegation in her petition plaintiff testified that the defendant, Robert Dryer, driver of the cab, failed to assist her in alighting from the cab; that because of her extreme weight and the inclemency of the weather, that this omission constituted an act of negligence. Conforming to this testimony the court gave the following instruction, which is challenged by the defendants:
This instruction was applicable to the evidence and enunciates the statutory provisions...
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