TAYLOR v. SITES

TAYLOR v. SITES
1955 OK 323
296 P.2d 152
Case Number: 36626
Decided: 11/08/1955
Supreme Court of Oklahoma

LEROY TAYLOR, PLAINTIFF IN ERROR,
v.
EDWARD C. SITES, DEFENDANT IN ERROR.

Syllabus

¶0 1. Where, in an action for damages for personal injuries resulting from a collision of defendant's automobile and plaintiff's motorcycle, the defendant testified that he did not see plaintiff until the moment of impact, it was error for the trial court to give an instruction to the jury on the rule governing acts in a sudden emergency, which could have no application even though pleaded by defendant.

2. An order of the trial court extending the time 'within which to file the casemade in the Supreme Court of the State of Oklahoma' is sufficiently definite to 'extend period of time' within which the proceedings 'shall be commenced' under the provisions of

[296 P.2d 153]

Appeal from the District Court of Oklahoma County; Francis Stewart, Judge.

Action by plaintiff Leroy Taylor, against the defendant, Edward C. Sites, to recover damages for personal injuries resulting from collision of motorcycle and automobile. Defendant sought recovery of damages for injury to property. From verdict and judgment denying either party a recovery, plaintiff appeals. Reversed and remanded with directions.

Paul W. Updegraff, Lester A. Reynolds, Norman, for plaintiff in error.

Cheek, Cheek & Cheek, Oklahoma City, for defendant in error.

DAVISON, J.

¶1 This is an action for damages for personal injuries resulting from a collision of an automobile and a motorcycle, brought by the plaintiff, Leroy Taylor, against the defendant Edward C. Sites. The parties will be referred to as they appeared in the trial court.

¶2 Shortly after noon on April 6, 1953, plaintiff was riding his motorcycle in a westerly direction in the center lane on Tenth street in Oklahoma City, Oklahoma. Said street was a busy four lane through street, protected from intersecting traffic by stop signs. At the same time, defendant was driving his automobile in a northerly direction on Lee Street upon which there was a stop sign at its intersection with Tenth street. About 150 to 175 yards before he reached the intersection, plaintiff slowed the speed of his vehicle so that a taxicab immediately in front of him could make a left turn into a hospital driveway. After pulling around the cab he continued on toward the intersection at a moderate rate of speed. Defendant drove up to the intersection, stopped at the sign, crossed the eastbound lanes of traffic and just as he was entering the center westbound lane, the two vehicles collided. Immediately before the collision, plaintiff swerved to his right away from the defendant's approaching automobile but was struck at about the middle of his motorcycle. He and his vehicle slid some 27 feet in a northwesterly direction, coming to rest near the street curbing. His motorcycle was practically demolished and also he received personal injuries.

¶3 The case was tried to a jury upon plaintiff's petition and defendant's cross-petition for the damage done to his car. The verdict was against recovery by either party and plaintiff has perfected this appeal from said verdict and the judgment rendered thereon.

¶4 [296 P.2d 154] Defendant, as one of his defenses, pleaded that he was confronted with, and acted in, a sudden emergency. Over plaintiff's proper objection and exception, the trial court gave an instruction upon that theory. The basis of plaintiff's objection was that there could have been no action in a sudden emergency because defendant testified that he did not see plaintiff or the motorcycle until the moment of impact. The record discloses that testimony and, with plaintiff's contention, we agree.

¶5 The exact question here presented has not to our knowledge been presented to this court but on numerous occasions we have held that the giving of an instruction upon an issue not supported by the evidence is error. A recent application of that rule was in the case of Huey v. Stephens, Okl.,

¶6 A very similar state of facts was before the Washington Court, in the case of Lubliner v. Ruge, 21 Wash. 2d 881,

"The objection made to this instruction [on acts in a sudden emergency] is that the evidence does not show a factual situation to which the rule pronounced can apply. The respondent did not testify. Neither of the occupants of the car saw or was conscious of the presence of the appellant in the intersection before the impact. Darkness had fallen and visibility was poor. It cannot be assumed that respondent became suddenly aware of the presence of appellant in the path of the car he was driving. In order that the doctrine of acts in an emergency can apply, there must be an emergency of some kind, but there could be none here if the presence of appellant in front of the car was not known to respondent. As the record stood, it was error to give the instruction."

¶7 The same reasoning and conclusion applies to the case now before us, necessitating a reversal and remand for new trial. Having reached the conclusion that a new trial must be had, it is not necessary to decide the other proposition presented.

¶8 However, defendant in error has presented a motion to dismiss the appeal upon the grounds that it was not lodged in this court within the time required by law. It is provided by

¶9 By

¶10 Motion to dismiss appeal is denied and the judgment reversed and cause remanded for new trial.

¶11 JOHNSON, C.J., WILLIAMS, V.C.J., and CORN and BLACKBIRD, JJ., concur.

¶12 WELCH, HALLEY and HUNT, JJ., dissent.