Tyree v. Dunn

• Decision Date: 09 July 1957
• Docket Number: No. 37545,37545
• Parties: Josephine TYREE, Plaintiff in Error, v. Richard DUNN, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 782

315 P.2d 782

1957 OK 190

Josephine TYREE, Plaintiff in Error, v. Richard DUNN, Defendant in Error.

No. 37545.

Supreme Court of Oklahoma.

July 9, 1957.

Rehearing Denied Sept. 24, 1957.

Syllabus by the Court

1. An unavoidable accident is one which occurs while all persons concerned were exercising ordinary care, being one not caused by the fault of any of the persons, and if the accident could have been prevented by either person by means suggested by common prudence, it is not deemed unavoidable.

2. An instruction that the verdict should be for defendant if jury found collision was the result of an unavoidable accident where there was no evidence establishing the accident as 'unavoidable' was, as the present case was submitted, prejudicial error.

Appeal from the District Court of Murray County; W. J. Monroe, Judge.

Action by plaintiff, Josephine Tyree, for damages to her car and for personal injuries sustained when defendant's car collided with her car. Judgment for defendant, and plaintiff appeals. Reversed with directions.

Walter Billingsley, Allen G. Nichols, Wewoka, Dick Bell, Seminole, for plaintiff in error.

Butler, Rinehart & Morrison, Oklahoma City, for defendant in error.

JOHNSON, Justice.

Parties will be referred to as they appeared in the trial court.

This is an action for damages to plaintiff's automobile and for personal injuries sustained by her when defendant (Richard Dunn) allegedly negligently ran into the rear end of her car while she was stopped in obedience to the red light of a stop sign.

The defendant in his answer admitted that the accident occurred, but denied any negligence on his part and alleged that the accident was caused by an automotive casualty due to a mechanical failure over which he had no control or prior warning. Trial of the case resulted in a general verdict for the defendant upon which judgment was entered, and plaintiff appeals.

This appeal involves the sufficiency of the evidence to raise the issue of 'unavoidable accident' and the prejudicial effect of the court's instruction on that issue.

Plaintiff contends that there was no evidence to raise that issue, and that it was reversible error to instruct the jury on same.

In Huey v. Stephens, Okl., 275 P.2d 254, we held that an instruction that the verdict should be for defendant if jury found that the collision was the result of an unavoidable accident where there was no evidence establishing the accident as unavoidable was, as that case was submitted, prejudicial error. In Hayward v. Ginn, Okl., 306 P.2d 320, we held that under the record therein that the giving of the instruction, though erroneous because there was no evidence to establish the fact that the accident was unavoidable, was harmless error, and thereby modified Huey v. Stephens, supra, to that extent for the reason that a search of the record did not reveal that the instruction given resulted in a miscarriage of justice.

However, in the instant case, from a careful examination of the record, we are of the opinion that the defense of the harmless error statute (12 O.S.1951, § 78) is not, as applied in Hayward v. Ginn, supra, available.

A brief resume of the evidentiary matters is substantially as follows: That the defendant saw the car driven by plaintiff at least a block away. He admitted that she had stopped at a stop sign, and that the red light was on. He admitted that he was 20 feet behind plaintiff's car when he discovered his brake was out. He further admitted that he had an emergency brake, but that he did not use it. Though he testified that he was driving only ten to fifteen miles per hour at the time the accident occurred, yet the damage to the right rear fender and bumper was in the sum of $80, caused by the impact of his car when he attempted to go around plaintiff's car apparently to avoid hitting her car. He testified that the impact knocked plaintiff's car forward about five feet. He testified that the impact knocked the left fender of his car back against the tire and knocked the head light out. He further testified that the back bumper of plaintiff's car was broken, left tail light broken and fender dented. He was asked this direct question on cross examination:

'Q. You ran into the back of her car because you didn't think about what you could have done to avoid it. That's the reason isn't it? Go ahead and answer.'

'A. Yes, sir.'

The street was presumably level, and the accident admittedly was in broad daylight. The plaintiff's car was at all times in plain view of the defendant. He saw the red light and knew that he must stop under the law.

This evidence does not raise the issue of 'unavoidable accident' and the submission of the issue to the jury was prejudicial to the rights of plaintiff, resulting in a miscarriage of justice. No negligence was shown on the part of plaintiff whatsoever. By the use of means suggested by common prudence, the defendant could have prevented the accident; therefore, the accident was not unavoidable.

In Huey v. Stephens, supra, a following Sullins v. Pace, Tex.Civ.App., 208 S.W.2d 583, we defined the term 'unavoidable accident' in the...