Annotate this Case

1957 OK 224
318 P.2d 410
Case Number: 37377
Decided: 10/01/1957
Supreme Court of Oklahoma


Syllabus by the Court.

¶0 1. In a case where the personal injuries for which plaintiff is seeking damages are the result of an automobile accident in which the car he was riding was struck by the defendant driving her car from the opposite direction and across the center of the highway into plaintiff's car's lane in violation of statutory rules of the road, and by reason of no fault of the driver of plaintiff's car, proof of such facts is prima facie evidence of the defendant's negligence and casts upon her (or him) the burden of overcoming such presumption of negligence and showing that her violation of said statute was excusable under the circumstances. This burden requires evidence reasonably explaining that such violation was due to something other than her negligence, or to circumstances which she could not reasonably have controlled or altered. Such explanation is sufficient, in view of plaintiff's ultimate burden of proving his injuries were proximately caused by defendant's negligence, if it makes it appear as reasonable that the accident was unavoidable as that it was the proximate result of defendant's negligence.
2. Whether a collision between plaintiff's and defendant's respective autos was unavoidable, or was proximately caused by the negligence of either, or both, of the parties involved, is for determination by the jury under proper instructions, where the respective duties of the parties depend on the circumstances of the case and are not completely prescribed by law, and where reasonable men might differ as to such duties, and whether or not the parties discharged them, regardless of whether the facts are disputed, or undisputed.

Appeal from the District Court of Garvin County; Joe D. Shumate, Judge.

Action by a guest passenger in an automobile with which defendant's auto collided, for damages for personal injuries incurred as a result of said collision. From a verdict and judgment for defendant, plaintiff appeals. Vacated and remanded for new trial.

Smith, Johns, Smith & Neuffer, By Gomer Smith, Jr., Oklahoma City, and Clarence Bowie, Pauls Valley, for plaintiff in error.

Pierce, Mock & Duncan, Calvin W. Hendrickson, Oklahoma City, of counsel, for defendant in error.


¶1 Plaintiff in error was a guest passenger in a Chevrolet Sedan automobile, driven by one Harris, traveling west on State Highway No. 19, near Maysville, Oklahoma, when it was struck by a Ford Club Coupe, which defendant in error was driving east on the same road. The impact of the collision turned the Harris car over, and plaintiff in error suffered personal injuries therefrom. Thereafter, he instituted the present action, as plaintiff, against defendant in error, as defendant, for damages on account of said injuries. The parties will hereinafter be referred to as they appeared in the trial court.

¶2 Defendant's principal defense to the action was that, as to her, the collision was an unavoidable accident and was caused solely by the negligence of a third party, one Reynolds, who drove his Chrysler automobile onto the highway just ahead of her car. She alleged in substance that the latter incident created a "sudden emergency" during which, in attempting to avoid striking the Chrysler, she lost control of her car and careened across the road and struck the car in which plaintiff was riding.

¶3 At the close of the trial, the jury returned a verdict in favor of defendant, and, after the overruling of his motion for a new trial, plaintiff perfected the present appeal.

¶4 The particular place on the highway, where the collision occurred, was just east of the Dill Service Station, which was located on the south side of the highway, with its front facing north. The station is on, or near, the crest of a hill that the highway transverses, and over which plaintiff's car had just passed in coming down the highway toward the station and defendant's car. Adjoining the station on the east, with its front, or north, line paralleling the highway, was a used car lot. As defendant's car neared the station from the west, the Chrysler, driven by Reynolds, came from the used car lot (or its vicinity) onto the highway, and headed east. Defendant testified that she was "a hundred or maybe two hundred feet" from the Chrysler when she first saw it approaching the highway, but, that it was going slow and she thought it was going to stop, so she went on, but "all of a sudden * * * (it) pulled right out in front of me * * *". According to her testimony, when the Chrysler turned east onto the highway, the distance between it and her car had been shortened (from "a hundred or two hundred feet") to "maybe forty feet"; she applied her brakes, but, to avoid hitting the rear end of the Chrysler, also "pulled to the right * * *". This brought the right, or south, side of her car off of the pavement onto the graveled driveway in front of the filling station and used car lot. The evidence reasonably tends to show that then, to get her car entirely back on the paved portion of the road, and more particularly to avoid hitting a culvert paralleling the road's graveled shoulder at the east edge of this driveway, the defendant turned her car to the left; she "was excited" and her car's rear end skidded. Also, according to her testimony, when this happened, her car ran directly across the center line of the highway, "and then" she "noticed" the car in which plaintiff was riding. Instead of her car hitting plaintiff's "head-on" however, its left front corner scraped the left rear fender of the latter, which, due to the impact, rolled down the side of the embanked north shoulder of the highway, turning over twice as it did so.

¶5 In plaintiff's brief, many assignments of error are argued, but since, as we view the case, at least one of them presents substantial ground for a new trial, it will be unnecessary to deal with all of them. One of the arguments under plaintiff's Propositions II to V, both inclusive, is, in substance, that by its instructions, the trial court, in effect, placed upon plaintiff the burden of proving that, in the situation above described, the defendant was not confronted with a sudden emergency and therefore that the accident was not unavoidable. Plaintiff's counsel point out that though, by its Instruction No. 9, the trial court indicated to the jury that they might find for the defendant on the ground of her defense of sudden emergency, still the court gave the jury no criterion with which to determine whether or not she had established such defense. They point out that the only instructions given with reference to burden of proof cast upon plaintiff the burden of proving defendant negligent by a preponderance of the evidence.

"The undisputed fact that the defendant's car was on the wrong side of the road established a prima facie case of negligence on the part of the defendant. The defendant then had the burden of producing evidence which would overcome the inference of negligence arising from the fact that the defendant's car was on the wrong side of the highway."

See also Roadway Express, Inc., v. Baty, 189 Okl. 180, 114 P.2d 935, 937; Oklahoma Producing & Refining Corp. of America v. Freeman, 88 Okl. 166, 212 P. 742; Larkey v. Church, 79 Okl. 202, 192 P. 569, and other cases cited in Vol. 4, part 2 (Perm. Ed.) of Cyclopedia of Automobile Law and Practice, Blashfield, p. 173, note 7.10 and p. 207, note 15; Lauber v. Lyon, 188 Wash. 644, 63 P.2d 389; Woods v. U.S., 10 Cir., 228 F.2d 734; Interstate Veneer Co. v. Edwards, 191 Va. 107, 60 S.E.2d 4, 23 A.L.R.2d 532. In the last cited case, in which the plaintiff's cause of action for damages arose by reason of defendants' car "cutting across" to the wrong side of the road and colliding with plaintiff's decedent's car, the court held, in substance, that although plaintiff had the "ultimate" burden of showing that the death was caused by the defendants' negligence, the fact that the collision occurred on the wrong side of the road, under the circumstances there present, was sufficient to make out a prima facie case for plaintiff which required "the defendant to advance a reasonable explanation tending to show that the death was due to something other than defendants' negligence, and such explanation is sufficient if it outweighs the plaintiff's prima facie case, or if it leaves the ultimate question of defendants' negligence in equipoise." In Seligman v. Orth (Hammond), 205 Wis. 199, 236 N.W. 115, 116, the court expressed itself in the same erroneous way that the trial court in this case, in effect, instructed the jury, by there saying that in order for the plaintiffs therein to recover "it was necessary for them to show that (the defendant) was (on the wrong side of the road) by reason of his lack of ordinary care." This was in conflict with the Wisconsin Court's opinions in Hamilton v. Reinemann, 233 Wis. 572, 290 N.W. 194, and the Kempfer case, supra, and was to such extent specifically overruled by said court's opinion in the latter case. From our conclusion, on the basis of the foregoing, that the instructions of the trial court in this case, when considered as a whole, placed an undue burden on the plaintiff, to his probable prejudice, failing as they did to give the jury proper guidance in determining material issues of the case, as it was said court's duty, on its own motion, to do (

¶6 However, whether or not defendant's burden of proof, on the basis of the evidence presented, was met, or discharged, was properly for determination by the jury, rather than the court. In their argument that the court erred in overruling plaintiff's motion for a directed verdict, his counsel says defendant's "own testimony conclusively shows that she failed to keep a proper lookout for others rightfully using the highway, that she failed to keep her car under such control as to be able to stop within the assured clear distance ahead, and that without any necessity for such action she purposely turned her car across the center line, striking plaintiff's car." As counsel view the matter, defendant was negligent in not applying her brakes when she first saw the Chrysler approaching the south edge of the highway in front of her, rather than "waiting" until it had turned onto the highway and she was only 40 feet behind it. They say it cannot be concluded, from any of the testimony, that defendant lost control of her car through no fault of her own. We cannot say, on the basis of the evidence, and the reasonable inferences to be drawn therefrom, that defendant did not lose control of her car. This was a matter for consideration by the jury in determining whether the predicament, she found herself in, came about through no fault of hers, or was the result of her negligence. Plaintiff's estimate of the speed of defendant's car, when he first saw it approaching, was slightly higher, but, by the majority of the evidence, the car was traveling near, but within, the lawful speed limit. At that time, the south half, or her lane, of the highway was clear of obstruction; and plaintiff points to nothing which, at that precise moment, made it her duty to slow down. Nor does he point to any rule of the road, or rule of law, which required her to do so at the moment she saw the Reynolds Chrysler slowly moving towards the highway, except

¶7 In view of the foregoing, it is our opinion that the trial court properly overruled plaintiff's motion for a directed verdict. However, in view of the fundamental error in the court's instructions hereinbefore pointed out, its judgment is hereby vacated and the cause is remanded to said court for a new trial.


¶9 WELCH, C.J., and HALLEY and JOHNSON, JJ., dissent.