Rowton v. Kemp

10 Citing cases

  1. Benson v. Brady

    255 P.2d 710 (Idaho 1953)   Cited 14 times

    An instruction that an accident is "unavoidable" is proper where the jury could find: (a) that the plaintiff has failed in his proof, (b) that it was caused by a force a reasonable person would not have anticipated, or (c) that it was not proximately caused by the defendant's negligence. Parker v. Womack, 37 Cal.2d 116, 230 P.2d 823; Rowton v. Kemp, 190 Okl. 558, 125 P.2d 1003; Eigner v. Race, 54 Cal.App.2d 506, 129 P.2d 444. PORTER, Chief Justice.

  2. C.F. Church Div. of Amer. R. S. San. v. Golden

    1967 OK 130 (Okla. 1967)   Cited 8 times

    This court has held in several cases that where the defense of unavoidable accident is pleaded in the answer of the defendant and the evidence introduced at the trial would justify a decision on such issue it is the duty of the trial court to submit the issue to the jury under a proper instruction. Lucy v. St. Louis-San Francisco Ry. Co., Okla., 386 P.2d 156; Wofford v. Lewis, Okla., 377 P.2d 37; Ries v. Cartwright, Okla., 297 P.2d 367; Fuller v. Neundorf, Okla., 278 P.2d 836; Huey v. Stephens, Okla., 275 P.2d 254; Rowton v. Kemp, 190 Okla. 558, 125 P.2d 1003; Wilson v. Roach, 101 Okla. 30, 222 P. 1000. The evidence presented in this case justified the trial court in submitting the instructions on unavoidable casualty to the jury.

  3. Collins v. Thomas

    135 S.E.2d 754 (S.C. 1964)   Cited 13 times
    Reciting the trial court's charge on unavoidable accident: " defendant cannot be held liable for what is called a mere accident or an unavoidable accident, which may be defined as an occurrence not proximately . . . caused by . . . any negligence or willfulness on the part of any person."

    McDonald McDonald, of Winnsboro, and Nelson, Mullins, Grier Scarborough, of Columbia, forAppellant, cite: As to rule that the defense of unavoidableaccident is available under a general denial, if raised by theevidence, and need not be specifically pleaded: 15 Wn.2d 483, 131 P.2d 177; 183 Ala. 195, 62 So. 759; 98 Cal.App. 101, 276 P. 389; (Mo.) 256 S.W. 819; 45 N.M. 176, 113 P.2d 320; 128 Or. 310, 284 P. 915; 37 S.W.2d 219; 184 N.E.2d 530; 190 Okla. 558, 125 P.2d 1003; 227 Ark. 260, 298 S.W.2d 338; 83 N.J.L. 88, 83 A.2d 783; 78 Wyo. 1, 318 P.2d 368; 45 C.J. 1140 Neg., Sec. 730; 5 Am. Jur., Automobiles and Highway Traffic, Sec. 895, 65 A.L.R.2d 49; 8 S.C. 258; 112 S.C. 205, 99 S.E. 828. As to the trialJudge properly charging the law of unavoidable accident: 79 Ariz. 122, 285 P.2d 165; 102 Ga. App. 367, 116 S.E.2d 500; (Ky.) 277 S.W.2d 49; 69 Ohio L. Abs. 378, 125 N.E.2d 758; 17 Tenn. App. 375, 67 S.W.2d 751; 5 A.D.2d 950, 171 N.Y.S.2d 212; 149 Md. 281, 131 A. 350; (Tex.Civ.App.) 95 S.W.2d 1342; 350 Ill. App. 504, 113 N.E.2d 178; 244 Minn. 108, 69 N.W.2d 98; 104 Mont. 63, 65 P.2d 3; 155 Conn. 352; 161 A. 665; 283 F.2d 766; 283 F.2d 411; 57 Wn.2d 317, 356 P.2d 712; 186 Okla. 9, 95 P.2d 897; 298 Mich. 18, 298 N.W. 388; 67 N.M. 10, 350 P.2d 1028; 105 Ga. App. 809, 125 S.E.2d 723. As to the order granting a newtrial containing an error of law and is therefore appealable: 108 S.C. 486, 94 S.E. 878. Messrs. George F. Coleman and John A. Martin, of Winnsb

  4. Lucy v. St. Louis-San Francisco Railway Co.

    1963 OK 232 (Okla. 1963)   Cited 1 times

    Defendants' answers do not expressly plead such a conclusion but do plead facts constituting a statement of this defense. Furthermore in Rowton v. Kemp, 190 Okla. 558, 125 P.2d 1003, we held a court is authorized to instruct on the issue of unavoidable accident whenever the evidence introduced on the trial would justify a finding on such issue. Plaintiff also urges that the court erred in admitting a photograph in evidence over the objection of plaintiff.

  5. Dietz v. Mead

    52 Del. 481 (Del. 1960)   Cited 14 times

    If there is evidence to sustain a charge of inevitable or unavoidable accident, it should be given. Rowton v. Kemp, 190 Okl. 558, 125 P.2d 1003; Airline MotorCoaches, Inc. v. Fields, 140 Tex. 221, 166 S.W.2d 917; Webb v. City of Seattle, 22 Wn.2d 596, 157 P.2d 312, 158 A.L.R. 810. It has long been the practice in this state to do so. Campbell v. Walker, 2 Boyce 41, 78 A. 601; Gismondi v. People's Ry. Co., 2 Boyce 577, 83 A. 136; Culbert v. Wilmington P. Traction Co., 3 Boyce 253, 82 A. 1081; Brown v. Mayor and Council of Wilmington, 4 Boyce 492, 90 A. 44; Wollaston v. Stiltz, 1 W.W. Harr. 273, 114 A. 198; Gray v. Pennsylvania R. Co., 3 W.W. Harr. 450, 139 A. 66; Biddle v. Haldas Bros., 8 W.W. Harr. 210, 190 A. 588.

  6. Keiffer v. Strbac

    349 P.2d 6 (Okla. 1960)   Cited 3 times
    In Keiffer v. Strbac, 349 P.2d 6 (Okla. 1960), we allowed the use of an unavoidable accident instruction when an icy road was the agency over which the motorist had no control and the motorist was operating his vehicle in the manner of an ordinary prudent person.

    Therefore the instruction on unavoidable accident by the trial court in the case at bar was proper and did not constitute reversible error. See Rowton v. Kemp, 190 Okla. 558, 125 P.2d 1003, and Hartman v. Dunn, 186 Okla. 9, 95 P.2d 897, and Wilson v. Roach, supra. As to the instruction concerning sudden emergency the plaintiff relies upon Bocock v. Tulsa Stockyards Company, Okla., 309 P.2d 279. This case is not applicable to the facts in the case here.

  7. Ries v. Cartwright

    297 P.2d 367 (Okla. 1956)   Cited 4 times

    Relative to the question of unavoidable accident, the case at bar differs from that of Huey v. Stephens, Okla., 275 P.2d 254, in that, in the reported case there was no physical condition having an influence on defendant's actions. Herein, bright lights of the approaching car were sufficient to blind defendant and the jury could reasonably conclude that they had the same effect on Keim. Whether or not he voluntarily pulled off on the shoulder could not be determined. Under such circumstances, the jury could properly have determined that the accident was inevitable and unavoidable. It is not error to instruct on unavoidable accident where the defendant has pleaded and the evidence shows circumstances from which the jury could find an unavoidable accident. Rowton v. Kemp, 190 Okla. 558, 125 P.2d 1003. The trial court committed no error in submitting the issue of agency and unavoidable accident to the jury and the instructions given thereon were proper.

  8. Long v. Welch

    295 P.2d 285 (Okla. 1956)

    However, we must assume, in accord with the presumption accompanying jury verdicts on appeal, that the evidence showed either that the collision was an unavoidable accident or that it was proximately caused by contributory negligence on the part of the deceased. Plaintiff's argument is based upon the premise that the question of whether or not the collision was an unavoidable accident, was not an issue in the case solely because it was not expressly pleaded as such. This premise is incorrect, and was so determined in Rowton v. Kemp, 190 Okla. 558, 125 P.2d 1003. Mount v. Nichols, 198 Okla. 282, 177 P.2d 1013, which is the only case cited by plaintiff's counsel, is no authority to the contrary. Though not specifically reflected in this court's opinion therein, our statement there that: "Unavoidable accident was not plead by either party" was not the sole basis for our stated conclusion that: "It was not an issue in the case."

  9. Fuller v. Neundorf

    1954 OK 362 (Okla. 1955)   Cited 18 times

    In Wilson v. Roach, 101 Okla. 30, 222 P. 1000, we held that the trial court erred in refusing to give an instruction on unavoidable or inevitable accident where evidence reasonably sustains a finding that the accident happened by and without fault. In Rowton v. Kemp, 190 Okla. 558, 125 P.2d 1003, we held that the court is authorized to instruct on the issue of unavoidable accident whenever the evidence introduced on the trial would justify a finding on such issue. See also Cabiniss v. Andrews, supra.

  10. Burton v. Harn

    156 P.2d 618 (Okla. 1945)   Cited 6 times

    Since, in effect, both plaintiff and defendant claimed that they were without fault, and there was evidence reasonably tending to support a finding that neither party was at fault as they approached and entered the intersection, the definition of unavoidable accident was proper. Like instructions have been approved in Rowton v. Kemp, 190 Okla. 558, 125 P.2d 1003; and Wilson v. Roach, 101 Okla. 30, 222 P. 1000. There was no error in giving the instruction on unavoidable accident.