Dierksen v. Hollingworth

5 Citing cases

  1. Kurn v. Mundy

    120 P.2d 995 (Okla. 1942)

    Further complaint is made with reference to the admission of certain evidence relating to the amount of damage to the injured cattle. In the case of Dierksen v. Hollingsworth, 184 Okla. 611, 89 P.2d 358, we held: "Error in the admission of incompetent evidence as to the amount of damages sustained in a negligence action will not justify a reversal where the verdict is not excessive."

  2. Thompson v. Norwood

    117 P.2d 791 (Okla. 1941)   Cited 7 times

    The trial court, over the objections of plaintiff, gave three instructions as to the duty of the plaintiff in keeping with the allegations of the answer, and in two of them the jury was told that if the plaintiff was guilty of negligence as alleged, he could not recover. These instructions were erroneous in two respects: (1) They submitted the issue of contributory negligence when it was not raised by the answer, which was in legal effect a general denial (Colonial Refining Co. v. Lathrop, 64 Okla. 47, 166 P. 747, L.R.A. 1917F, 890); and (2) they invade the province of the jury, in violation of section 6, art. 23, of the State Constitution, in that they told the jury, in effect, that certain facts constituted contributory negligence which prevented recovery by the plaintiff. Owens v. Turman Oil Co., 183 Okla. 182, 80 P.2d 576; Dierksen v. Hollingworth, 184 Okla. 611, 89 P.2d 358. The trial court assigned no reason for sustaining the motion for new trial, nor was he requested to do so. We are unable to say from a careful examination of the record that the defendant was entitled to an instructed verdict, as requested and argued, and that the giving of said instructions constituted harmless error.

  3. Grand River Dam Authority v. Victor

    114 P.2d 465 (Okla. 1941)   Cited 3 times

    It is not error for the trial court to refuse to give an instruction if practically the same proposition of law is covered by the court in other instructions to the jury. Black v. Warren, 178 Okla. 216, 62 P.2d 88; Rowland v. Morgan, 178 Okla. 600, 63 P.2d 712; Meiling v. Michael, 182 Okla. 508, 78 P.2d 704; Safe-Way Cab Service Co. v. Gadberry, 180 Okla. 51, 67 P.2d 434; Oklahoma Natural Gas Co. v. Courtney, 182 Okla. 582, 79 P.2d 235; Garrett v. Haworth, 183 Okla. 569; 83 P.2d 822; Dierksen v. Hollingworth, 184 Okla. 611, 89 P.2d 358. Nor is it error for the court to refuse to instruct the jury in negative form when it has already instructed them in the affirmative form. Doody v. Calif. Woolen Mills Co. (Mo.) 216 S.W. 531; Martin v. City of Columbus, 93 Kan. 79, 143 P. 421; Pacific Mutual Life Ins. Co. v. Smith, 166 Ark. 403, 266 S.W. 279; Kalberer v. Wilmore, 65 Colo. 411, 177 P. 147; Sparta Produce Exch. v. Wilson Co., 223 Ill. App. 126.

  4. Caesar v. Phillips Petroleum Co.

    104 P.2d 429 (Okla. 1940)   Cited 13 times

    The question of the sufficiency of the evidence in a case involving negligence to justify its submission to a jury for determination has been many times considered by this court, and the settled rule is that where the evidence is such that reasonable men may fairly differ as to whether negligence is thereby shown, the question is for the jury to decide. Pure Oil Co. v. Gear, supra; Wright v. Clark, 177 Okla. 628, 61 P.2d 192. And when the evidence is sufficient to produce this result, a demurrer thereto should be overruled. Dierksen v. Hollingsworth, 184 Okla. 611, 89 P.2d 358. The driver of a vehicle desiring to make a left turn across the highway between intersections should exercise extra precaution before attempting it, as such turns are less frequent than at intersections, and therefore not anticipated to the same extent by other travelers. McIver v. Allen, 33 Ariz. 28, 262 P. 5. See, also, Gibson Oil Co. v. Westbrooke, 160 Okla. 26, 16 P.2d 127; 2 Blashfield Cyclopedia of Automobile Law and Practice, pp. 283, 316, 317, ยงยง 1121, 1170, 1171. Tested by the rules of law above announced, we consider the evidence produced by plaintiff sufficient to present a question for determination by the jury.

  5. Oklahoma City-Ada-Atoka R. Co. v. Swink

    97 P.2d 72 (Okla. 1939)   Cited 6 times

    While plaintiff alleged numerous acts of negligence, the evidence was directed to only two: (a) Failure to maintain a flagman, gates, or automatic bells at the crossing; (b) failure to sound the whistle as a warning that the train was approaching the crossing, as required by law. The elements of actionable negligence are (1) a duty on the part of the defendant to protect the injured party from injury; (2) failure of defendant to perform that duty; and (3) that such failure was the proximate cause of the injury. Dierksen v. Hollingsworth (1939) 184 Okla. 611, 89 P.2d 358. Viewing the evidence on plaintiff's contention that the crossing was so dangerous as to require automatic signals or a flagman, in the light of the above requirements, we find it insufficient to justify its submission to the jury, as there was no evidence that the crossing was an especially hazardous one. St. Louis-S. F. Ry. Co. v. Robinson (1924) 99 Okla. 2, 225 P. 986. As to the failure to sound the whistle, however, there was testimony by witnesses who were in position to hear that this signal was not given.