Lindemann v. Randolph , 414 P.2d 257 ( 1965 )

BERRY, Justice.

Presented herein is the appeal of Julius E. Lindemann and Commercial Trades Institute, defendants .in the trial' court, from a judgment rendered against them upon a jury verdict in plaintiff’s favor, in an action to recover damages for personal injuries received in an automobile accident which occurred under the following physical surroundings and ciricumstances hereafter related.

Highway 33 runs generally east and west from Drumright, Oklahoma. A short distance east of the City this highway is intersected by Highway 99 which runs north and south. There are no stop signs on Highway 33 but there are stop signs on Highway 99 at this intersection. Concrete islands, or medians, located opposite the center of the intersection separate traffic approaching and clearing the intersection. These traffic lanes are 24 feet wide along each side of the medians. Some distance east there is located a sign limiting speed to-50 miles per hour, which is not visible from the intersection because of an intervening rise. Westbound traffic on Highway 33 can be seen for a distance of 500 feet east of the intersection.

The parties to this action were involved in an accident at this intersection at approximately 1:15 p. m. on September 10, 1962, a clear warm day. Plaintiff was a passenger in a car driven by her husband, Luelza Randolph, defendant herein, which was traveling east on Highway 33. The collision occurred between the vehicle in which plaintiff was a passenger and an automobile driven by defendant Lindemann traveling west. None of these parties had traveled through the intersection prior to the accident which occurred at the north edge of the paved, westbound traffic lane on Highway 33 when the left front of Linde-mann’s car collided with the right front fender of the Randolph car. A truck was stopped at the stop sign north of the intersection and following the impact the vehicles involved passed on either side of the truck.

Plaintiff alleged that she received the injuries complained of while riding as a guest passenger in a car being driven in an easterly direction by her husband, when he made a left turn at this intersection and was struck by the westbound automobile driven by Lindemann, an employee of Commercial Trades Institute; that her injuries resulted from the conjoint negligence of both drivers. Negligence was charged against defendant Randolph in making a left turn in front of oncoming traffic in violation of applicable statutes, failure to keep a proper lookout ahead, and failure to use due care to protect a guest-passenger. The petition alleged defendant Lindemann was negligent in operating his vehicle at greater speed than would permit stopping within assured clear distance ahead, and in failing to drive at a reasonable and prudent speed under the circumstances.

Defendant Randolph answered denying negligence and charging plaintiff with contributory negligence in (1) failing to keep a proper lookout; (2) failure to exercise ordinary care for her own safety; (3) failure to remonstrate with defendant or leave the vehicle; (4) failure to observe and warn of the approach of Lindemann’s vehicle, thereby allowing the vehicle in which she was a passenger to be driven into a place of danger. This defendant also asserted the defense of unavoidable accident.

Defendant Lindemann denied negligence or want of care, and particularly alleged the negligence of Randolph was the proximate cause of the accident in (1) failing to keep a proper lookout; (2) making a left turn in front of Lindemann without yielding the right-of-way; (3) violation of statutes in failing to give a proper signal of intention to turn left in front of defendant; (4) driving at a speed which prevented stopping in the assured clear distance ahead in violation of statutes; (5) failure to exercise proper care to slow or stop his car to avoid accident. The answer charged plaintiff with negligence contributing to and proximately causing accident in failing to look out for her own safety, warn her husband of impending danger and of violation of statutes by making a left turn without yielding right-of-way, and generally failing to exercise due care.

The evidence relative to issues raised was that defendant, traveling east, stopped at the intersection and looked in all directions before proceeding. Plaintiff testified she saw no other vehicle and as defendant made his left turn they were struck by the other car. Defendant Randolph testified he drove up to the intersection and stopped to see if there was traffic coming in different directions, and saw nothing other than a truck at the stop sign to the north, but could not tell whether the truck was moving because he did not pay that much attention. The road was clear when defendant started the turn, but was struck after getting partially across the intersection. Defendant looked to see if there was oncoming traffic, and could not see anything.

One witness had driven behind the Randolph car at a distance of about 100 feet from the time it left Drumright, traveling about 25 miles per hour. The witness could not remember whether Randolph stopped at the intersection before making the left turn; he observed the defendant’s car coming from the east and estimated the speed to be 40-50 miles per hour. The witness never saw any signal for a left turn given by Randolph.

Defendant Lindemann testified he was traveling 40-50 miles per hour within a block of the accident. Coming over the hill he observed defendant’s car and presumed “he was going to go straight”, but as he came into the intersection could see the front wheels begin to turn and immediately applied his own brakes and swerved to the north in an attempt to avoid colliding. Randolph’s car was approximately two-car lengths back from the median when defendant first saw it, and Randolph’s car never stopped.

The highway patrolman, who investigated the accident, testified defendant Linde-mann’s car laid down 36 feet of skid marks before the collision. He estimated the speed of Lindemann’s car at from 35-45 miles per hour when the brakes were applied.

At the close of the evidence, and after demurrers and motions for directed verdict for the different defendants had been overruled, counsel for defendants Lindemann and his employer, directed attention to the trial court’s failure to instruct the jury upon the issue of Randolph’s duty in making a left turn. And, counsel also advised the court that the issue as to right-of-way constituted reversible error. The trial court overruled the objection interposed by defendants based upon failure to instruct upon this feature of the case.

Because the case must be retried, no need arises for discussion of any issue other than that advanced by defendants’ second proposition :

“THE FAILURE OF THE TRIAL COURT TO INSTRUCT ON THE DUTY OF ONE MAKING A LEFT TURN IN FRONT OF ONCOMING TRAFFIC, THE DUTY OF ONE TO GIVE PROPER SIGNAL PRIOR TO MAKING A TURN, AND THE RIGHT OF WAY WITHIN AN INTERSECTION, IS DENIAL OF A SUBSTANTIVE RIGHT OF THESE DEFENDANTS.”

At the outset, we acknowledge the efficacy of rules announced in earlier decisions such as Ironside v. Ironside et al., 188 Okl. 267, 108 P.2d 157, 134 A.L.R. 621, and Wilson et al. v. Shawnee Milling Co., Okl., 292 P.2d 147, to the effect that one tort feasor cannot escape liability for negligence in operating a vehicle upon the ground that a joint tort feasor also was negligent. The doctrine of concurrent negligence is settled. Likewise, despite the right to presume that other drivers will obey the law, the rule is that the operator of a vehicle must exercise the degree of care commensurate with the circumstances. Goodridge v. Davis, Okl., 345 P.2d 894. However, in Goodridge we stated in Syllabus 1 that the presumption simply is one factor to be considered by the jury in determining the degree of care required of the driver seeking to indulge the presumption.

Plaintiff charged Lindemann with operating his vehicle at excessive speed which would not permit stopping in the assured clear distance ahead. Only general charges of negligence were made against defendant Randolph, plaintiff’s husband. Lindemann’s answer specifically charged the accident resulted solely from Randolph’s negligence in failing to yield the right-of-way and failing to signal when making a left turn in violation of applicable statutes. Thus, it is observed defendant, in pleading violation of applicable statutes, presented the specific defense that the accident resulted from Randolph’s primary negligence in violating these statutes.

Plaintiff’s argument is that since both drivers were charged with concurrent negligence it was of no moment as to which had right-of-way, the only material question being whether each was guilty of some negligence, or whether their separate acts of negligence concurred to produce plaintiff’s injuries. As concerns this argument we agree with defendants that this, in effect, would deny a party charged with negligence any right to assert a defense of liability of a codefendant where plaintiff did not allege against that defendant the same breach of duty upon which the plea of the code-fendant’s sole liability was based.

Plaintiff argues that no instruction relative to making a left turn, duty to signal and right-of-way within the intersection was required. This is predicated upon the interpretation placed upon part of the evidence that Randolph’s vehicle already was in the intersection and turning when first seen by defendant. Examination of the testimony does not establish as an uncon-troverted fact the conclusion sought to be drawn therefrom. The conflicting evidence as to whether Randolph was in or near the intersection raised a question of fact, proper determination of which required a specific instruction as to the legal duties imposed upon him under the circumstances.

A number of earlier decisions have involved a trial court’s failure to instruct upon an issue involving a substantive right asserted in defense to an action. In McIntire v. Burns, 172 Okl. 152, 42 P.2d 143, the defense was by way of general denial and plea of contributory negligence. Therein we held that a general denial was sufficient to raise the issue as to which vehicle was entitled to the right-of-way, and failure to instruct the jury upon such issue constituted reversible error.

In Elam v. Beverly, 191 Okl. 375, 129 P.2d 838, we found reversible error in the failure of the trial court, upon its own motion, to instruct the jury that driving a truck at a speed in excess of that prescribed by statute for such vehicle constituted negligence per se. This because the issue involved was a fundamental issue.

Riser v. Herr, 187 Okl. 211, 102 P.2d 178, involved an action for damages resulting from an intersection collision. Plaintiff alleged defendant’s failure to discharge the legal duty of looking for traffic approaching from the right when approaching the intersection. The defendant had denied the allegations that plaintiff had right-of-way, and specifically alleged her own vehicle had right-of-way. On appeal, a judgment for plaintiff was reversed for failure of the court to instruct that defendant’s claim of right-of-way was a substantial part of her defense, and failure to present this theory to the jury denied defendant a substantial right.

Fisher v. Sturgeon, 205 Okl. 44, 234 P.2d 375, also involved a suit for damages incurred in an intersection collision between plaintiff’s auto and defendant’s truck. The petition charged defendant with negligence in driving from a side road onto heavily-traveled road at dangerous speed; failure to yield right-of-way to plaintiff who entered intersection from the right; failure to operate his vehicle so as to be able to stop in assured clear distance. Defendant specifically denied negligence and alleged defendant’s right-of-way because of prior entry into intersection, and that plaintiff’s negligence was the proximate cause of the accident. A judgment for plaintiff was reversed on appeal for failure to instruct upon the vital issue, raised by the pleadings, as to which vehicle first entered into the intersection and obtained right-of-way under a statute which delineated rules of the road. The conclusion reached, based specifically upon the result in Herr, supra, was that failure of the trial court to instruct upon the vital issue so presented constituted reversible error.

In Subscribers, etc. Exchange v. Sims, Okl., 293 P.2d 578, the terminal question concerned which of two vehicles involved in an intersection collision had the right-of-way. Plaintiff’s petition charged defendant with negligence in driving a taxicab into the intersection at a high rate of speed without first coming to a stop, and striking the auto in which plaintiff was a passenger, which already was in the intersection and thus had right-of-way. Defendant’s answer alleged negligence of the driver of plaintiff’s vehicle by reason of speed in excess of speed limit, failure to have the vehicle under control, and violation of right-of-way regulations contained in particular city ordinances. Judgment for plaintiff was reversed for the reason the question of which vehicle had right-of-way was the decisive issue, and the trial court failed to give any instruction in this regard. The decision was based squarely upon the Fisher and Iierr cases, supra.

In the present appeal plaintiff alleged negligence on the part of defendant in driving at a dangerous speed so as to be unable to stop in the assured clear distance ahead. The answer of defendant Randolph raised only the issue of plaintiff’s contributory negligence. The appealing defendants alleged negligence upon the part of the code-fendant with particularity as concerned Randolph’s acts, omissions and statutory violations in making a left turn at the time, place and in the manner attempted.

Thus, as between plaintiff and the appealing defendants, the issue for the jury to determine was: Was defendant’s excessive speed the proximate cause of the accident and resulting injury, or was the sole cause of the accident Randolph’s failure to yield the right-of-way and violation of statutes requiring giving a proper signal of intention to make a left turn? Absent proper instructions concerning these matters, it was not possible for the jury to determine whether defendant’s operation of his vehicle, making it impossible to stop within the assured clear distance ahead, or Randolph’s failure to meet legal requirements, was the proximate cause of the accident. The failure to submit this issue was called to the trial court’s attention. This was a vital feature of defendant’s defense to plaintiff’s claim of negligence resulting in injury. Failure to instruct upon a fundamental issue constitutes reversible error. Fisher v. Sturgeon, supra; and Oklahoma Transportation Company et al. v. Green, Okl., 344 P.2d 660.

The judgment is reversed and the case remanded with directions to grant new trial.

HALLEY, C. J., JACICSON, V. C. J., and WILLIAMS, IRWIN and LAVENDER, JJ., concur. DAVISON, BLACKBIRD and HODGES, JJ., dissent.