Whitney v. Douglas

• Citation: 307 P.2d 154
• Decision Date: 12 February 1957
• Docket Number: No. 37412,37412
• Parties: Mary P. WHITNEY, Administratrix of the Estate of E. W. Whitney, Deceased, Plaintiff in Error, v. A. B. DOUGLAS, Defendant in Error.
• Court: Supreme Court of Oklahoma

Page 154

307 P.2d 154

1957 OK 29

Mary P. WHITNEY, Administratrix of the Estate of E. W.

Whitney, Deceased, Plaintiff in Error, v. A. B. DOUGLAS, Defendant in Error.

No. 37412.

Supreme Court of Oklahoma.

Feb. 12, 1957.

Syllabus by the Court.

1. A jury verdict will not be disturbed on appeal where there is any competent evidence reasonably tending to support it.

2. 'Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distrance ahead,' is the degree of care prescribed by statute. 47 O.S.1951, Section 121.3.

3. Where there is testimony that the defendant was driving his automobile at an excessive rate of speed, such violation is negligence per se and it is a question for the jury to determine whether the excessive speed was the proximate cause of plaintiff's injuries.

Appeal from District Court of Seminole County; Jess I. Miracle, Judge.

Action for damages for personal injuries by A. B. Douglas against E. W. Whitney, resulting from automobile, driven by E. W. Whitney, in which A. B. Douglas was a passenger, striking a horse on the highway and injuring plaintiff. Verdict and judgment for plaintiff. Defendant appealed. Affirmed.

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

A. S. Wells, Seminole, Tom C. Greer, Wewoka, for defendant in error.

HALLEY, Justice.

This is an action filed in the District Court of Seminole County, Oklahoma, by A. B. Douglas against E. W. Whitney to recover damages for personal injuries alleged to have been the result of the negligence of the defendant in driving his automobile in a reckless manner while plaintiff was a passenger therein on the night of December 13, 1954. Judgment was rendered in favor of the plaintiff in the sum of $3,000, based upon a jury verdict for that amount, on April 11, 1956. The defendant, E. W. Whitney, has appealed. He died May 11, 1956, and Mary P. Whitney as administratrix of his estate, was substituted as defendant. We shall refer to the parties by name or as plaintiff and defendant as they appeared in the trial court.

The general facts are that on the 13th of December, 1954, the defendant, E. W. Whitney, an attorney of Wewoka, Oklahoma, and the plaintiff, A. B. Douglas, a real estate broker, were near Seminole, Oklahoma, doing some appraisal work. About 7 P.M., when it was dark, they started to return to Wewoka in Whitney's car and Douglas was a passenger of Whitney's. While driving along Highway 270 in an easterly direction about six and one-half miles west of Wewoka, they topped the crest of a hill and a horse suddenly appeared on the right-hand side of the road apparently headed in a northerly direction. This was a black-top road. The horse was struck by the car in the south or right-hand lane and carried about ninety feet. When it was dropped off on the right-hand side of the road the car proceeded down the road about 179 feet further and came to a stop on the north side of the pavement.

The parties to this action were the only eye witnesses to the accident. Whitney claimed that he was driving about fifty miles per hour while Douglas estimated that the car was being driven sixty to sixty-five miles per hour when the collision occurred and that after leaving Seminole he had warned Whitney twice that he was driving too fast and advised him to slow down. This was denied by Whitney.

Douglas alleged that as a result of the collision he was thrown violently against the front of the car and suffered serious and permanent injuries, consisting of a hernia on his right side, injuries to his right knee, his right arm and also damage to his spine extending through his second and fifth cervical vertebrae. He alleged that these injuries were permanent and disabling; that he was earning $200 to $300 per month in the real estate business and in good health prior to his injuries, which had rendered him unable to work; that he had lost his earning power and had incurred drug and doctors' bills, and that three doctors had found his injuries permanent and advised him that he would suffer from such injuries for the remainder of his natural life; that for four weeks after the accident he suffered severe pains, was unable to sleep or rest and had to remain in a chair or bed.

He further alleged that he had already incurred medical and hospital bills in the sum of $393 and that he will be compelled to employ physicians and purchase drugs in the future to the amount of $3,000. He alleged that his injuries were the result of the negligence of the defendant in driving his car in the nighttime at a high and dangerous rate of speed of sixty miles per hour; in failing to keep his car under such control as to be able to stop within the clear scope of his vision; and in driving his car into and against a horse on the highway and thereby throwing the plaintiff violently against portions of the car which caused his injuries which were the direct result of the plaintiff's negligence.

The defendant admitted the accident but denied that his negligence was the cause of the collision which was unavoidable. He charged contributory negligence on the part of the plaintiff in failing to warn him of the presence of the horse on the highway, and in an amended answer it was alleged that the parties were engaged in a joint enterprise and that defendant's negligence would be imputed to the plaintiff. This last allegation was not urged in the brief of the defendant.

All of defendant's assignments of error are submitted in two propositions, the first of which is as follows:

'The only allegations by plaintiff as to proximate cause went to the speed and the manner in which defendant was driving his vehicle and it was clearly and conclusively shown by both plaintiff's and defendant's proof that such were not the proximate cause of the accident and plaintiff's injuries, and the verdict, therefore, should have been for defendant.'

The above contention is based upon the assertion that the evidence clearly proved that the speed at which defendant was driving his car and his manner of operating the car at the time of the accident were not the proximate cause of the accident. In support of this assertion the defendant cites numerous decisions from other States but only two decisions from Oklahoma. We find that the Oklahoma cases cited are not applicable because they involve a different state of facts.

The plaintiff cites Miller v. Dobbs, 180 Okl. 576, 71 P.2d 737, 738, which involved the killing of a mule that had strayed upon the highway at night. The defendant there was driving about fifty miles per...