Taylor v. Birks

5 Citing cases

  1. Treadway v. Uniroyal Tire Co.

    1988 OK 37 (Okla. 1988)   Cited 8 times

    It is well settled that a party may not complain on appeal of an erroneous instruction that is more favorable to that party than it is entitled to and the giving of the instruction does not constitute reversible error. Taylor v. Birks, 325 P.2d 737, 740-41 (Okla. 1958). It therefore follows that the trial court's erroneous instruction of the defense of misuse was not prejudicial and therefore is harmless error. With regard to appellant's assertion that the jury's verdict was excessive, I agree with this Court's rejection of this contention.

  2. Holland v. Dolese Co.

    1982 OK 43 (Okla. 1982)   Cited 14 times

    Plaintiff alleges error on the part of the trial court in submitting the question of contributory negligence on the part of plaintiff's decedent to the jury, and in support thereof, relies primarily upon Carnes v. White. In Carnes, we quoted with approval from Taylor v. Birks, Okla., 325 P.2d 737: "In order for it to be necessary to instruct on the question of contributory negligence there must be some evidence produced at the trial, either by the plaintiff or defendants, from which contributory negligence could be inferred or presumed (emphasis supplied)" and added, "[s]ome evidence of contributory negligence must be shown at the trial before the defendant is entitled to an instruction on contributory negligence." The record before us does not disclose any evidence of contributory negligence on the part of the plaintiff's decedent which could be the basis for reducing the plaintiff's damages under our comparative negligence law.

  3. Carnes v. White

    511 P.2d 1101 (Okla. 1973)   Cited 6 times

    "Instruction No. 10: `If you do not so find negligence against either one of said defendants, or should you find from the evidence that the plaintiff was guilty of contributory negligence, as heretofore defined to you in these instructions, which caused or contributed in causing the accident, . . . . then in any of the later events your verdict as between the plaintiff and the defendants, Dupree and White, should be for the defendants.'" The parties agree the rule to be applied by the trial court in determining whether to instruct on contributory negligence is the principle stated in Taylor v. Birks (Okla. 1958), 325 P.2d 737, 740: "In order for it to be necessary to instruct on the question of contributory negligence there must be some evidence produced at the trial, either by the plaintiff or defendants, from which contributory negligence could be inferred or presumed."

  4. Rader v. Fleming

    1967 OK 104 (Okla. 1967)   Cited 6 times

    "The defense of contributory negligence * * * shall, in all cases whatsoever, be a question of fact and shall at all times be left to the jury." Taylor v. Birks, Okla., 325 P.2d 737, sets out the applicable rule as follows: "In order for it to be necessary to instruct on the question of contributory negligence there must be some evidence produced at the trial either by the plaintiff or by the defendant, from which contributory negligence could be inferred or presumed * * *."

  5. Orthopedic Clinic v. Hanson

    1966 OK 119 (Okla. 1966)   Cited 20 times
    In Orthopedic Clinic v. Hanson, 415 P.2d 991 (Okla. 1966), the burn was shown, with reasonable certainty, to have resulted from a known malfunctioning electric shock therapy machine.

    * * *" As the instruction given were more favorable to the defendants than those which they assert they were entitled to receive, the defendants have no basis for complaint. Stagner v. Files, supra; American Life Ass'n v. Rogers, Okla., 281 P.2d 183; Taylor v. Birks, Okla., 325 P.2d 737. The defendants also assert that the trial court erred in submitting the case to the jury on alternate theories of negligence: (1) that the medcolator was improperly operated; (2) that the medcolator was defective, which defect should have been known to the defendants. The defendants argue that the evidence is insufficient as a matter of law to establish negligent operation of the medcolator and that this theory was improperly submitted to the jury.