White Line Cab & Baggage Co. v. Waterman

• Decision Date: 07 July 1931
• Docket Number: Case Number: 20030
• Citation: White Line Cab & Baggage Co. v. Waterman, 150 Okla. 277, 3 P.2d 839, 1931 OK 427 (Okla. 1931)
• Parties: WHITE LINE CAB & BAGGAGE CO. v. WATERMAN.
• Court: Oklahoma Supreme Court

1931 OK 427

3 P.2d 839

150 Okla. 277

WHITE LINE CAB & BAGGAGE CO. v. WATERMAN.

Case Number: 20030

Supreme Court of Oklahoma

Decided: July 7, 1931

Syllabus

¶0 Negligence--Failure of Proof as to Primary Negligence in Personal Injury Action.

Where, in a personal injury action, there is a total lack of evidence tending to prove primary negligence, it is error to overrule defendant's motion for a directed verdict.

Appeal from District Court, Tulsa County; Edwin R. McNeill, Judge.

Action by Harry A. Waterman against the White Line Cab & Baggage Company.Judgment for plaintiff, and defendant appeals.Reversed.

Green & Farmer, for plaintiff in error.

Mason & Williams, for defendant in error.

HEFNER, J.

¶1 The White Line Cab & Baggage Company, a corporation, appeals from the judgment rendered against it in the district court of Tulsa county in a personal injury action.The judgment is in the sum of $ 10,000, and in favor of Harry A. Waterman.

¶2 The main contention of the appellant is that the court erred in overruling its motion for a directed verdict.

¶3Plaintiff was injured by being struck by the right front fender of a taxicab belonging to appellant.The acts of negligence charged in the petition consist of driving at a reckless rate of speed and in excess of 15 miles per hour; that the driver of the cab failed to keep a proper lookout for pedestrians; that he failed to sound his horn; that he failed to keep the cab under proper control; and that he was driving on the left side of the street.

¶4 The evidence discloses that the accident occurred about 10 o'clock at night on April 14, 1926, a few feet south of the intersection of Second street and Boulder avenue in the city of Tulsa.R. A. Sisson, an employee of the defendant, was driving the cab at the time of the accident.The evidence of all the witnesses is that he was driving north on Boulder avenue, at the time he struck plaintiff, at a rate of speed from eight to twelve miles per hour; that he struck plaintiff from 30 to 70 feet south of the intersection.Dr. Musgrave, who was driving south on Boulder avenue, was the only person except the driver who saw plaintiff as he entered the street.Both the driver and Dr. Musgrave testified that there were numerous cars parked on the east side of Boulder avenue; that plaintiff came out from among these cars and entered the street a few feet in front of the cab, and was going west across Boulder avenue; that the driver brought the cab to a sudden and quick stop.The driver testified that upon discovering plaintiffhe sounded the horn, put on the brakes, swerved slightly to the left in an attempt to miss him, but that the right fender struck him before he could stop, and that he stopped within a distance of eight feet.Dr. Musgrave testified that the cab stopped within a distance of four feet.

¶5Benton Remy was the only witness to the accident who testified in behalf of plaintiff.His evidence was that he was driving immediately behind the cab at the time of the accident; that he did not see plaintiff enter the street, but saw him just as he was struck by the cab; that the cab was being driven at from ten to twelve miles an hour; that the driver turned a little to the left, hit plaintiff as he turned, and stopped very quickly; that plaintiff was struck at a distance of about 25 feet south of the intersection; that when the cab stopped the front of the cab was slightly to the left of the middle of the street, and that plaintiff was found lying near the rear wheel of the cab; that the driver placed plaintiff in the cab and took him to the hospital.This evidence is all undisputed and constitutes all of the evidence as to the accident except the evidence of plaintiff himself.He testified that he was "approximately at the corner or near the corner of Second and Boulder," and that he was struck by the cab while he was attempting to cross the intersection at Second street and Boulder, and that before crossing he looked up and down the street and saw no cars approaching; that he saw some cars parked, but he did not see the car that struck him, neither did he see the car that was going south on Boulder.

¶6He contends that there is a conflict in the evidence sufficient to take the case to the jury; that, under the testimony of plaintiff, he could not have entered the street as testified to by the other witnesses, and that, under his testimony, he was struck in the intersection instead of some distance south thereof.We do not agree with this contention.Plaintiff does not testify that he was struck in the intersection.His testimony is that he was at or near the corner of Second and Boulder and was struck while attempting to cross at the intersection, and he further testified that he has no further recollection whatsoever as to the accident.Plaintiff does not testify at what point at the intersection of these streets he attempted to cross.The undisputed testimony is that he crossed at a point from 30 to 75 feet south of the intersection.The only eye witness, testifying on behalf of the plaintiff, testified that he was struck at a point about 25 feet south of the intersection.The driver of the cab testified that he struck plaintiff at a distance of from 40 to 50 feet south of the intersection.Dr. Musgrave, who was driving south on Boulder, testified that he was struck at a distance of from 70 to 80 feet south of the intersection.We do not think the evidence of plaintiff sufficiently definite to raise an issue on this question.

¶7Plaintiff further contends that the...