WADE v. REIMER

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WADE v. REIMER
1961 OK 44
359 P.2d 1071
Case Number: 38954
Decided: 02/28/1961
Supreme Court of Oklahoma

GERALD WADE, BY AND THROUGH HIS MOTHER AND NEXT FRIEND, JANE WADE, PLAINTIFF IN ERROR,
v.
DON REIMER, DEFENDANT IN ERROR.

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

Syllabus by the Court

¶0 1. The trial court must, on its own motion, properly charge the jury on issues raised by the pleadings and evidence in the case, but, in the absence of a request for and exceptions to the instructions, as required by Title 12 O.S.1951 § 578, this court will review the instructions given only to determine whether they are free from fundamental error, and instructions which submit the vital features of the tenable legal theories of both litigants upon the issues of fact involved are sufficient.
2. In view of constitutional provision making contributory negligence a question of fact for the jury, if there is any evidence of contributory negligence or from which contributory negligence may be inferred, the issue must be submitted to the jury under proper instructions. O.S.1951, Const. Art. 23, Sec. 6.

Action by passenger against motorist to recover damages for personal injuries. From a judgment for the defendant, plaintiff appeals. Affirmed.

D. Warren Crisjohn, Dove Creek, Colo., Arthurs, Blackstock & McMillan, Bristow, for plaintiff in error.

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

IRWIN, Justice.

¶1 Plaintiff, a minor 17 years of age, instituted this action (through his mother) to recover damages for personal injuries. He and another boy were passengers in a pickup truck driven by the defendant. They were proceeding west from their home town of Yale, Oklahoma, and were en route to a show in Stillwater. It was early in the afternoon of March 8, 1958. Shortly after they left Yale it started raining hard and puddles of water began to accumulate on the surface of the highway. Defendant, driving at a speed estimated variously from 50 to 65 miles per hour, steered the vehicle so as to avoid these puddles. As they approached a point approximately 10 miles west of Yale, the two right wheels of the pick-up suddenly came off the pavement to the right shoulder of the road. The vehicle slid "sideways" back across the entire concrete width of the highway and then through the adjoining bar ditch crashing into a tree. After jury trial resulted in a verdict and judgment for the defendant, and a motion for a new trial overruled, plaintiff appeals.

¶2 At issue is the correctness of trial court's instructions. The record reflects no requested instructions submitted by the plaintiff and no exceptions saved or taken to any instructions given by the trial judge. Under this state of the record our review is confined solely to the question of determining whether the instructions challenged on appeal are free from fundamental error. Barnes v. Oklahoma Transp. Co., Okl.,

¶3 Error is predicated, inter alia, upon the failure of the trial judge to instruct the jury that a violation on the part of defendant of Title

¶4 We are not persuaded by the argument that the issue of whether defendant violated the reckless driving statute should be treated as uncontroverted because there was evidence of his plea of guilty to that offense in a criminal prosecution arising out of the same accident. Such plea, when introduced in a subsequent civil action, does not operate to remove an issue from the consideration of the jury nor is it admitted as a judgment establishing the fact and binding the defendant. Rather, this evidence serves to show a deliberate admission or declaration against interest. The ultimate question of negligence remains one for the jury. Laughlin v. Lamar, 205 Okl. 372,

¶5 The provisions of Title

¶6 Plaintiff next urges that it was error for the court to submit an instruction on the defense of contributory negligence since there was no evidence in support thereof. Principal reliance is placed upon our decision in Miller v. Price, 168 Okl. 452,

¶7 As disclosed by undisputed evidence, defendant had maintained the same speed nearly all the way from Yale to the point of the collision and had repeatedly steered the vehicle in a weaving course so as to avoid the puddles of water accumulated upon the highway. Although plaintiff charged that this very conduct constituted negligence and precipitated the accident, it is admitted that he did not warn or remonstrate with the driver against the manner of the vehicle's operation. Whether or not plaintiff failed to use ordinary care for his own safety was, under these facts, a question for the jury. Muenzler v. Phillips, Okl.,

¶8 The defense of contributory negligence was averred in the answer and the evidence as outlined is sufficient as a basis from which to draw an inference of contributory negligence. We find no fundamental error in the action of the trial court. O.S. 1951, Const. Art. 23, § 6 ; Wright v. Erwin, Okl.,

¶9 Lastly, it is argued that there was error in charging the jury upon the law relating to the maximum allowable speed. Title

¶10 While the trial court did inform the jury as to the maximum speed allowed by law, it also explained in the same instruction that vehicles must conform at all times to the requirement of the statute relating to reasonable, careful and prudent speeds. The instruction so given is free from fundamental error.

¶11 There are other assignments of error which, though stated, are neither argued nor supported by authority. They will be regarded as waived. Maddox v. Bridal, supra; United Tire & Inv. Co. v. Trone, 189 Okl. 120,

¶12 The challenged instructions are free from fundamental error. The judgment is accordingly affirmed.