Townley's Dairy v. Creech

1970 OK 103, 476 P.2d 79
CourtSupreme Court of Oklahoma
DecidedMay 26, 1970
DocketNo. 42188
StatusPublished
Cited by3 cases

This text of 1970 OK 103 (Townley's Dairy v. Creech) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Townley's Dairy v. Creech, 1970 OK 103, 476 P.2d 79 (Okla. 1970).

Opinion

BLACKBIRD, Justice.

In the trial court, defendant in error, hereinafter referred to as “plaintiff”, obtained judgment, in accord with the jury’s verdict, for damages against plaintiffs in error, hereinafter referred to as “defendants”, for the wrongful death of her husband, Jesse Eugene Creech, which resulted from a collision, at a street intersection, with one of the defendant Dairy’s delivery trucks, driven by said Dairy’s route salesman, Glenn Dale Nail, and the Chevrolet Sedan that the said Mr. Creech (hereinafter referred to as the “Deceased”) was driving.

The point at which the collision occurred about 6:30 o’clock and before daylight, on [80]*80a misty and foggy February morning, is where Midwest City’s Douglas Boulevard (hereinafter referred to merely as “Douglas”), extending in a northerly and southerly direction, intersects, at right angles, Southeast 29th Street, which extends in an easterly and westerly direction. At the intersection, both streets were 55 feet, and at least 4 traffic lanes, wide between their curb lines; and traffic on Southeast 29th Street, a thoroughfare, or “favored” highway, was “protected” by upright “Stop” signs standing between Douglas’ two northbound traffic lanes and its two south-bound traffic lanes, at their juncture with Southeast 29th Street (hereinafter referred to merely as “29th Street”, or “29th”).

The collision occurred when the dairy truck, traveling east on 29th, en route from the Dairy’s headquarters in southeastern Oklahoma City to McCloud, Shawnee, Tecumseh and Seminole, struck the Creech auto “broadside” as the latter vehicle was proceeding south across 29th, after its progress south on Douglas had been interrupted by stopping at the aforementioned stop sign, parallel with 29th Street’s north curb line. After the collision, the Creech Chevrolet came to rest upright in the parkway of the automobile service station in the southeastern corner of the intersection. The truck came to rest, facing in a southwesterly direction, partially up over the curb in the station’s parkway and partially out into one of Douglas’ traffic lanes, after turning over on its left side.

At the trial, it was shown that, just as the Creech car had entered the intersection after stopping at the stop sign on Douglas, another auto came from the north on Douglas’ outside, or western, south-bound lane, and passed the Creech car, on its right, or west, side, and crossing 29th, going south, only an instant before the subject collision. The dairy truck narrowly missed striking this car. It was_also shown that another auto, occupied by an Air Force Sergeant and a Chaplain, that had approached said stop sign, from the north, behind, and in the same traffic lane as, the Creech car, was still standing at said sign when the collision occurred. Although the occupants of this third car did not testify, a William Riley Hill, driver of a fourth car that was standing, facing west, on 29th Street’s southernmost west-bound lane, preparatory to entering the intersection for a turn south onto Douglas, witnessed the collision, and testified on behalf of plaintiff. This eyewitness stated that the Creech car had passed through approximately the north half of the intersection, before he first saw the dairy truck, coming into it from the west.

Mr. Wilder, the Oklahoma City Police Officer who arrived at the scene of the collision approximately 15 minutes after it occurred, and then made an investigation of it before either of the motor vehicles involved had been moved, testified, on behalf of plaintiff, that, from the debris, and the tire marks left on the pavement beginning at the point at which the dairy truck had apparently started pushing the Creech car sideways (in a southeasterly direction toward the curb line of the service station’s driveway), he was able to determine the collision’s point of impact, and that this was 11 feet east of Douglas’ west curb line and 43 feet south of 29th Street’s north curb line. He further testified that it was 69 feet from this point to the service station’s curb line and that, from there, it was 30 more feet, past the 16 or 18-inch-high-curb, to the place where the Creech car finally came to rest, after hurdling the curb; and that the dairy truck traveled a total distance of 54 feet from the point of impact, before it came to rest on its side.

No witness for the plaintiff was asked to, nor gave, any estimate of the speed of either of the two vehicles at the time they collided, but the aforementioned Mr. Hill testified that, because of the dense fog, if an auto had been traveling as much as 20 miles per hour, it would probably have collided with another one, before its driver could have seen the latter.

There was other testimony indicating that the intersection was rendered even more hazardous for the movement of traffic, [81]*81in and around it, by the construction work in progress there. According to Officer Wilder, this project consisted of narrowing the center median to provide for construction of a third lane for left-turn traffic, and the installation of electric traffic signal lights. According to plaintiff’s witness, Sultuska, not only was the middle of the street “torn up”, but there were excavations along both sides of it for the construction of new curbings there.

At the close of the plaintiff’s evidence, defendants demurred to it on the ground, among others, that it failed to show the speed of the dairy truck, or to support the allegations, in plaintiff’s petition, of its excessive speed. When this demurrer had been overruled, and defendants had been allowed exceptions to said ruling, they called the dairy truck driver, Nail, and two other witnesses to testify on their behalf; but neither of these witnesses was interrogated concerning the speed of the truck.

Nail did testify, in part, as follows:

«* * *
Q Would you tell us, Mr. Nail, about the weather conditions immediately surrounding the intersection of Southeast 29th Street and Douglas Boulevard?
A It was lightly foggy and light misty rain.
* * * * * *
Q Do you remember the point on Southeast 29th Street as you approached where you could first see the intersection that we are concerned with?
A Yes, sir.
Q How far away from the intersection were you?
A About a city block.
Q And what did you see ?
A I seen a car making a left hand signal pointing to turn south; I seen a car coming from the north setting and waiting yielding to me.
Q And then what happened?

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Bluebook (online)
1970 OK 103, 476 P.2d 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/townleys-dairy-v-creech-okla-1970.