Union Transp. Co. v. Lamb

• Decision Date: 13 January 1942
• Docket Number: Case Number: 28857
• Citation: Union Transp. Co. v. Lamb, 123 P.2d 660, 1942 OK 13, 190 Okla. 327 (Okla. 1942)
• Parties: UNION TRANSPORTATION CO. v. LAMB
• Court: Oklahoma Supreme Court

1942 OK 13

123 P.2d 660

190 Okla. 327

UNION TRANSPORTATION CO. v. LAMB

Case Number: 28857

Supreme Court of Oklahoma

Decided: January 13, 1942

Syllabus

¶0 1.NEGLIGENCE--"Negligence" defined.

Negligence comprehends a failure to exercise due care as required by the circumstances of the case; a failure to do what a person of ordinary prudence would have done under the circumstances or the doing of what such a person would not have done under the circumstances.

2.SAME--Negligence as question for jury--When for court.

A determination of the requirements of due care as the same should be exercised by an ordinarily prudent person rests in the first instance with the jury, and it is only where reasonable men would not differ or where the law definitely prescribes the standard of duty that the court may properly interfere with or ignore the determination of that fact-finding group.

3.SAME--AUTOMOBILES--Question for jury whether driver or car ahead should have signaled before stopping or turning.

Where two motor vehicles are traveling along a public highway, the law of this state does not arbitrarily impose upon the driver of the forward vehicle a duty to signal before stopping or turning, but circumstances may arise or exist where, in the exercise of due care, such a signal should be given.In such cases, except where reasonable minds might not differ, what due care required and whether it was exercised, are questions for the jury.

4.SAME--Sufficiency of evidence of primary negligence to go to jury on question whether driver of bus in traffic lane of principal highway was negligent in bringing bus to sudden stop without any signal of his intention to stop.

When the driver of a motor vehicle, of such a size that it obstructs the view of drivers of vehicles in his rear, of the road ahead, brings his vehicle to a sudden stop in the traffic lane of one of the principal highways of the state, behind a slower moving vehicle, and in front of an automobile traveling behind him, without any signal of his intention to stop, under circumstances from which the jury could reasonably infer that he knew of the presence of such automobile behind him and that he had ample opportunity to slow down gradually to avoid colliding with the vehicle in front, this court cannot hold as a matter of law that such driver exercised due care and that there was an absence of proof sufficient to establish primary negligence.

5.NEGLIGENCE--Each wrongdoer liable for single injury though concert lacking.

Where, although concert is lacking, the separate and independent acts or negligence of several combine to produce directly a single injury, each is responsible for the entire result, even though his act or neglect alone might not have caused it.

Appeal from District Court, Okfuskee County; Arthur Cochran, Judge.

Action by Harvey Lamb against Union Transportation Company to recover damages for personal injuries arising out of the alleged negligence of the defendant.From a judgment for plaintiff, defendant appeals.Affirmed.

Hudson & Hudson, of Tulsa, for plaintiff in error.

Harry Stephenson and Clem Stephenson, both of Okemah, for defendant in error.

DAVISON, J.

¶1This case is presented on appeal from the district court of Okfuskee county.It involves damages for personal injuries alleged to have been sustained by Harvey Lamb as a result of a collision between two motor vehicles proceeding in the same direction along U. S. HighwayNo. 62, one of the public highways of the state.

¶2 Mr. Lamb was riding with his brother, as a passenger, in an automobile when it ran into the rear end of a passenger bus (of a size adequate to accommodate 25 passengers) owned and being operated by the Union Transportation Company.At the point of the collision, which was about four miles east of the city of Okemah, the pavement was 18 feet wide.Both vehicles were proceeding in a westerly direction on that portion of the pavement used by westbound traffic.

¶3 Mr. Lamb, who, as plaintiff, instituted the action against the company in the trial tribunal, attributes the collision to the asserted negligence of the driver of the bus, who, it is claimed, suddenly and without warning signal, brought the large vehicle which he was operating to a sudden stop in the traveled portion of the highway used by westbound traffic.

¶4 On the trial of the cause to the jury, sharp conflicts developed between the proof offered by the respective parties.These conflicts were resolved by the jury in favor of the plaintiff, which returned a verdict awarding him $1,207.

¶5 Judgment was entered on the verdict, and the Union Transportation Company presents the case for review, appearing herein as plaintiff in error.Although the order of appearance is reversed in this court, our continued reference to the parties, when not otherwise designated, will be by their trial court designation.

¶6 Since this is an action of legal cognizance, as distinguished from one of equitable cognizance, the verdict of the jury is deemed to include specific finding in favor of the prevailing party upon all issues of fact, and it is not within our province to disturb such findings unless there is an absence of evidence in the record reasonably tending to support the same.

¶7 Thus we view the evidence in a light most favorable to the plaintiff, and conflicting evidence favorable to the defendant merits only incidental reference in this opinion.

¶8 The company, although apparently somewhat aggrieved that the jury did not adopt its version of the collision and the precipitating factors, does not urge that we should depart from the established method of approach in reviewing the evidence and deciding its appeal.

¶9 It takes the position that many of the points upon which conflicts developed in the evidence were comparatively insignificant, and that controlling importance should be attached to the undisputed fact that at the time of the collision the vehicle in which plaintiff was riding was behind the company's bus.

¶10 It urges in substance that when two motor driven vehicles are proceeding in the same direction along a public highway, the driver of the forward vehicle owes very little, if any, duty to the vehicle in the rear, or its occupants, and that such duties as were by law incumbent upon him were not in this case breached by its driver.

¶11 The company concludes that, since actionable primary negligence always includes the breach or nonperformance of a duty (Atchison, T. & S. F. Ry. Co. v. Phillips, 158 Okla. 141, 12 P.2d 908;Gulf, C. & S. F. Ry. Co. v. Nail, 156 Okla. 294, 10 P.2d 668), the absence of such nonperformance or breach of duty asserted to exist in this case demonstrates the absence of primary negligence and entitles it to judgment absolving it from liability.This is undoubtedly an appropriate, disposition of a case where there is an absence of proof of primary negligence.Earl v. Oklahoma City-Ada-Atoka Ry. Co., 187 Okla. 100, 101 P.2d 249;Roy v. St. Louis & S.- F. Ry. Co., 153 Okla. 270, 4 P.2d 1038;Gourley v. Jackson, 116 Okla. 30, 243 P. 243.

¶12 Basically, the position taken by the defendant company rests upon the relative position of the respective vehicles.However, the relative position of vehicles is only an important circumstance to be taken into consideration in applying the legal tests by which the existence of primary negligence is ascertained.It is not a specific situation to which the law applies arbitrary rules, to the exclusion of other conduct not contemplated by such rules as a basis of negligence.

¶13 Negligence comprehends a failure to exercise due care as required by the circumstances of the case(Rock Island Coal Mining Co. v. Davis, 44 Okla. 412, 144 P. 600); a failure to do what a person of ordinary prudence would have done under the circumstances or the doing of what such a person would not have done under the circumstances.Kress & Co. v. Nash, 183 Okla. 544, 83 P.2d 536;Wisdom v. Bernhardt, 170 Okla. 385, 40 P.2d 679;Electric Supply Co. v. Rosser, 88 Okla. 220, 214 P. 1068;Chicago, R. I. & P. Ry. Co. v. Watson, 36 Okla. 1, 127 P. 693.

¶14 These general principles apply to the drivers of vehicles using the highways.As observed by the federal court in Cardell v. Tennessee Electric Power Co., 79 F.2d 934:

" . . A leading vehicle has no absolute legal position superior to that of one following.Each driver must exercise ordinary care in the situation in which he finds himself....In each case, except when reasonable minds may not differ, what due care required, and whether it was exercised, is for the jury."

¶15 The language deleted from the foregoing quotation indicated that the federal court entertained the view that in the ordinary course of affairs the driver of the forward vehicle should signal in some appropriate way before stopping.It stated in part:

". . .The driver of the leading vehicle must exercise ordinary care not to stop, slow up, nor swerve from his course without adequate warning to following vehicles of his intention to do so . . . "

¶16 At apparent variance with this view are the views expressed by the Court of Appeals of Alabama, in Government Street Lumber Co. v. Ollinger, 18 Ala. App. 518, 94 So. 177(certiorari denied by Supreme Court of Alabama, 94 So. 922).That court said in the body of the opinion that:

". . . In the absence of facts or circumstances that would put him on notice of

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