Restatement of Laws, Second, Torts 2nd § 485; Deskins v. Woodward, 483 P.2d 1134 (Okla. 1971); Danner v. Chandler, 204 Okla. 693, 233 P.2d 953 (1951); La Fayette v. Bass, 122 Okla. 182, 252 P. 1101 (1927). Thus, in an action for damages to a plaintiff, the alleged negligence of a third party does not constitute a defense absent evidence of some other legal relationship between plaintiff and the third party, i.e., joint enterprise, master/servant or joint interests of a husband and wife, as to justify imputation of the third party's negligence to Plaintiff.
Saint Louis San Francisco Railroad Co. v. Bell, 58 Okla. 84, 159 P. 336, L.R.A. 1917A, 543; San Springs Railway Co. v. McWilliams, 170 Okla. 85, 38 P.2d 539; Banta v. Hestand, 181 Okla. 551, 75 P.2d 415; Midland Valley Railroad Co. v. Pettie, 196 Okla. 52, 162 P.2d 543. And the rule applies even though the driver and the passenger are kinspeople, such as husband and wife, or otherwise. Hasty v. Pittsburg County Railway Co., 112 Okla. 144, 240 P. 1056; Shefts Supply Co. v. Purkapile, 169 Okla. 157, 36 P.2d 275; Stillwater Milling Co. v. Templin, 182 Okla. 309, 77 P.2d 732; Danner v. Chandler, 204 Okla. 693, 233 P.2d 953; Loyd v. Campbell, 208 Okla. 212, 254 P.2d 986; Muenzler v. Phillips, Okla.Sup., 276 P.2d 221; Franklin v. Shelton, 10 Cir., 250 F.2d 92, certiorari denied, 355 U.S. 959, 78 S.Ct. 544, 2 L.Ed.2d 533. The evidence disclosed that Fain owned and was operating the Ford automobile; that he and his family resided in Oklahoma; that Julia Pridgin resided with her husband in Arkansas; that Fain and his family were going to a certain place in Arkansas to visit relatives; that Julia Pridgin was going to a different place in Arkansas, there to rejoin her husband in their home; and that other than driver and passenger, no relation in connection with the trip existed between Fain and his mother.
In Needham v. Harrison, 1961 OK 176, 363 P.2d 297, the passenger's mere failure to observe another car's approach did not support a contributory negligence instruction where there was no evidence of excess speed, careless driving, bad weather, or any other condition which would have alerted the passenger of the need to take "affirmative action for her own safety." Id. ¶ 5-6, 363 P.2d at 298; see also Banner v. Chandler, 1951 OK 208, 204 Okla. 693, 233 P.2d 953. Indeed, "[w]here the evidence, taken as a whole, does not warrant an instruction on contributory negligence, the giving of the same constitutes reversible error." Carries, 1973 OK 60, ¶ 23, 511 P.2d at 1105; accord Mouser, 1962 OK 203, ¶ 9, 375 P.2d at 970.
The plaintiff testified as follows: the car involved in the accident was a family car and the title to same was in his name; plaintiff was employed in Oklahoma City at the time of the accident; the deceased daughter had just finished high school and the family home in Duncan had been sold; both the mother and daughter were on their way to Oklahoma City to look at a house preliminary to buying and making their new home in Oklahoma City; that if the daughter was doing something that she shouldn't while she was driving, the mother would correct or tell her what to do; that in his opinion, based on his knowledge of the mother and daughter, on this particular trip they would have maintained the same attitude of advice when necessary. In Danner v. Chandler, 204 Okla. 693, 233 P.2d 953, one of the cases relied upon by plaintiff, we held that parties cannot be engaged in a joint enterprise, within the law of negligence, unless there be a community of interests in the objects or purposes of the undertaking, an equal right to direct and govern the movement and conduct of each other with respect thereto. Each must have some voice and right to be heard in its control and management.
"Q. Do you think he is at the stage where he can go back to selling papers? A. If he continues at the rate he has been progressing, I would think so." In the case of Danner v. Chandler, 204 Okla. 693, 233 P.2d 953, 957, the doctor was asked whether or not, in his opinion, the plaintiff would suffer pain in the future from her injuries and answered in the affirmative, but further stated: "`However, she is improving and she has improved some since the last examination with reference to these symptoms and I think she will continue to make some improvement, some further improvement.
To support this argument defendant relies upon Shawnee-Tecumseh Traction Co. v. Griggs, 50 Okla. 566, 151 P. 230; Hines, Director Gen. of R.R., v. Dean, 96 Okla. 107, 220 P. 860; and Forrest E. Gilmore Co. v. Hurry, 165 Okla. 29, 24 P.2d 653. The argument advanced upon the basis of the principles announced in the above-cited cases is without merit, in view of our recent holding in Danner v. Chandler, 204 Okla. 693, 233 P.2d 953. In that case the plaintiff testified to suffering continuous pain in her head and neck. The doctor testified that an injury such as plaintiff's would result in continuous suffering; that although she had improved at the time of the trial, and probably would continue to make some improvement, that this situation would, in his opinion, continue.