Wilkey v. Southwestern Greyhound Lines, Inc., 36614
| Decision Date | 24 April 1956 |
| Docket Number | No. 36614,36614 |
| Parties | Manuel E. WILKEY, Surviving Husband of Jean Louise Wilkey, Deceased, Plaintiff in Error, v. SOUTHWESTERN GREYHOUND LINES, Inc., a Corporation, and Bill L. Pratt, an Individual, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. In reviewing instructions to determine whether error was committed in granting or refusing a certain instruction, the court will consider the instructions as a whole, and if they fairly present the issues of the parties as supported by the evidence, the case will not be reversed.
2. It is not error to refuse an instruction on an immaterial issue or on an issue not vital to the action.
Appeal from the District Court of Oklahoma County; Albert C. Hunt, Judge.
Action by plaintiff, Manuel E. Wilkey, against Southwestern Greyhound Lines, Inc. and Bill L. Pratt, for the wrongful death of plaintiff's wife. From verdict and judgment for defendants, plaintiff appeals. Affirmed.
Pettigrew & Parkhill, Grand Prairie, Tex., Howard K. Berry and William A. Hennessy, Oklahoma City, for plaintiff in error.
Grigsby, Foliart & Hunt, Jake Hunt, Oklahoma City, for defendants in error.
The parties appear here as in the trial court and will be given their trial court designations.
For reversal plaintiff presents his argument under two propositions: (1) The driver of an overtaken vehicle is under no duty to drive his vehicle from the paved portion of the highway so as to permit an overtaking vehicle to pass, and an instruction which suggests that such a duty exists, is prejudicial error; and (2) error of the court in refusing to submit by appropriate instructions the theory of the plaintiff.
We have carefully examined the pleadings, the evidence and the instructions, and conclude that plaintiff's argument is without merit.
The accident occurred east of Weatherford, Oklahoma, on U. S. 66. Plaintiff was driving in an easterly direction and was towing a house trailer behind his automobile. Defendant's bus was traveling in an easterly direction and was overtaking and attempting to pass plaintiff's automobile and trailer at the time the accident occurred. The bus had been following immediately in rear of the trailer for approximately 2 miles, but low hills and 'no passing' zones had made it impossible to pass. The attempt to pass was made on a long downgrade. As the bus came abreast of the trailer the two vehicles became fastened together and left the highway on the north side and plunged through a bridge rail and into a canyon. Plaintiff's wife died from injuries received in the accident.
Plaintiff's petition and evidence is to the effect that the accident resulted from negligence of the defendants in that when the bus came abreast of the trailer the bus swerved to the south across the center line of the highway and became fastened to the trailer.
Defendants' evidence is to the effect that the accident resulted from negligence of the plaintiff in that when the bus came abreast of the trailer the car and trailer swerved to the north across the center line of the highway and became fastened to the bus. The bus laid down approximately 150 feet of skid marks before leaving the pavement on the north side. The tire marks from the bus started about 18 inches north of the center line where the color was 'light black,' and got blacker as they continued in a northeasterly direction and until they left the pavement.
Defendants do not complain or contend that plaintiff as driving too near the center line and failed to give way to the right when the bus driver sounded his horn, or that the plaintiff should have gone to the right shoulder of the road. The evidence of the defendants is to the effect that the plaintiff was in a proper place in plaintiff's lane of traffic, south of the center line, at the time the bus...
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...on which competent evidence has been introduced, they are sufficient. Buck v. Miller, 198 Okl. 617, 181 P.2d 264; Wilkey v. Southwestern Greyhound Lines, Okl., 296 P.2d 786. However, in this connection the defendants take the position that there was a complete absence of any competent medic......
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...of the parties were presented and they contain no fundamental error. Buck v. Miller, 198 Okl. 617, 181 P.2d 264; Wilkey v. Southwestern Greyhound Lines, Okl., 296 P.2d 786. Further an instruction on measure of damages does not go to the merits of the action and free from fundamental error d......
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Wilkey v. Southwestern Greyhound Lines, Inc., s. 37438
...case on the theory that the trial court had erred in its instructions; but this court affirmed the judgment. Wilkey v. Southwestern Greyhound Lines, Inc., Okl., 296 P.2d 786. Thereafter, the pleadings in Causes 131453 and 131455, supra, were amended to place in issue the question of whether......