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Athey v. Bingham7/30/1991
Rehearing Denied January 15, 1992.
SHARON GAYLE ATHEY, APPELLANT,
v.
CHARLES BINGHAM, APPELLEE.
Certiorari to the Oklahoma Court of Appeals, Division No. 4.
Jack Marwood Short, Tulsa, for appellant.
Brian M. Dell Speck & Dell, Oklahoma City, for appellee.
CERTIORARI PREVIOUSLY GRANTED, OPINION OF THE COURT OF APPEALS VACATED, AND CAUSE REMANDED TO THE COURT OF APPEALS WITH INSTRUCTIONS.
The opinion of the court was delivered by: SUMMERS, Justice.
This case affords an opportunity to examine the propriety of a jury instruction on "unavoidable accident." Under the factual circumstances we find no error in the giving of the instruction.
The plaintiff, Sharon Athey, was driving her vehicle at a rate of speed similar to the surrounding traffic on Interstate-40 in the left-hand lane with her lights on. Snow and sleet were falling on the ice-covered road. Her car began sliding to the right into the adjoining traffic lane and as it returned back into the left-hand lane her car was struck from the rear by the defendant, Charles Bingham. The parties went to the right-hand shoulder of the road, exchanged information, and then went their separate ways. The collision occurred in heavy Oklahoma City traffic, at approximately 5:00 P.M. on a Friday near the I-35 and I-40 interchange, with the defendant traveling approximately twenty-five miles per hour and at the same rate as surrounding traffic.
Athey sued in district court for her damages resulting from the collision. A jury returned a verdict for the defendant. She appealed and was granted a new trial. The second trial produced a second verdict in favor of the defendant. Athey appealed again. The Court of Appeals reversed and ordered a new trial. Bingham petitioned this court for a writ of certiorari, arguing the only issue settled by the Court of Appeals in reversing: that the unavoidable accident instruction was properly given by the trial court under the facts. Having granted certiorari, we agree. We vacate the opinion of the Court of Appeals and remand the cause to that Court for further appellate review.
In Hartman v. Dunn, 186 Okl. 9, 95 P.2d 897 (1939), we said that "An `unavoidable accident' is a casualty which occurs without negligence of either party, and when all means which common prudence suggests have been used to prevent it." Id. 95 P.2d at 901. In Huey v. Stephens, 275 P.2d 254 (1954), (overruled in part on other grounds, Hayward v. Ginn, 306 P.2d 320, 324 [Okla. 1957]), we said that an unavoidable accident "is brought about by some `agency' over which the motorist has no control and is rendered `inevitable' thereby, while using the customary modes of controlling his car." Id. 275 P.2d at 256. The question before us is whether the facts here would permit a finding of some agency causing the collision in the presence of both motorists driving prudently. In Huey we found that an unavoidable accident instruction was improperly given, and our discussion of such included the observation that ". . . and there was no evidence that the road was wet, slick or slippery." Id. 275 P.2d at 256.
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. Although the defendant/driver in Keiffer testified that the road condition of an icy spot on the overpass was unexpected we noted th
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