# Haskell v. Kennedy > Supreme Court of Oklahoma · July 21, 1931 · 151 Okla. 12 URL: https://www.frixlaw.com/law-library/cases/3829329 ## Case - **Full name:** HASKELL Et Al. v. KENNEDY - **Court:** Supreme Court of Oklahoma - **Decided:** July 21, 1931 - **Citations:** 151 Okla. 12; 1 P.2d 729; 1931 OK 467; 1931 Okla. LEXIS 517 - **Precedential status:** Published - **Opinion:** Dissent by Kornegay - **Judges:** Riley, Lester, Clark, Hefner, Oullison, Swindall, Kornegay, Andrews, McNeill - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3829329 ## Opinion text KORNEGAY, J. (dissenting). I dissent from the action of the majority in affirming judgment in this case. The case resulted in a verdict, signed by eleven jurors, in favor of the plaintiff below, and assessing his damages at $5,000. ,Tbe plaintiff below bases his right of recovery, as set forth in the petition, on account of an injury received on the 5th day of February, 1928, occasioned by coming in contact with a moving automobile belonging to the defendants, and driven by Ben Johnson, hired driver of an automobile of the defendants, who, at that time, was coming from an errand of taking the children of the defendants to a moving picture show in the town of Fairfax on Sunday afternoon. According to the petition, the plaintiff, when injured, was standing on a parkway some two feet from the curbing along a paved street in the town of Fairfax, Okla., and the automobile belonging to the defendants came over into the parkway, over the curb, and struck him. The allegation is as follows: “4. That on said 5th day of February. 1928, and at the time this plaintiff was playing on the parking, as aforesaid, said Ben Johnson, while driving said car of said defendants and on an errand for the defendants, drove along said street in front of the home' of the plaintiff at a great and excessive rate of speed, or some 35 or 40 miles an hour, and at a speed by the laws of the state of Oklahoma and by the ordinances of the city of Fairfax, Okla., a copy of which ordinance is hereto attached marked exhibit ‘A’ and made a part hereof, and that as said car, being driv.n by the said Ben Johnson, as aforesaid, for and on behalf of said defendants, as aforesaid, approached the place where the plaintiff was playing as aforesaid, and at such excessive rate of speed as aforesaid, darted from the paved portion of said street, up over the curb and onto the parking or boulevard in the center of said street, and struck the plaintiff in the back of the head and knocked the plaintiff down into the gutter and seriously and dangerously injured said plaintiff. “5. That said injury was occasioned wholly and solely by reason of the fault of the defendants aforesaid and by reason of the neglect of the defendants and their employee as. aforesaid; that said employee was driving said automobile at' a fast and excessive rate of speed and at such rate of speed that he ran up and over the curb for some 40 or 50 feet after said car had gotten entirely upon said parking, and that said defendants and their employee were further negligent in that they knew that children played upon said parking, and that said employee knew that said children were piaying there at said time and said employee and said defendants knew that it was the custom and habit of small children to play upon said parking and in and around said street and that said defendants, frequently^ and "almost every day and often many times a day, passed back and forth along said street and were thoroughly familiar with conditions there, and that said defendants and their employee were further negligent in that they did not watch to see if the plaintiff was there and in that they did not stop the car before striking said plaintiff and in that they drove said car, or permitted the same to be driven, upon said parking and in that they did not keep the car in good condition in that brakes were not kept in good condition.” The injury to the plaintiff is described in paragraphs 6, 7, 8, 9, 10, 11, 12, 13, and 14 of the petition, and judgment is asked against the defendants for $29,200, and the petition is endorsed: “Lien Claimed “Gray & Palmer, “Attys. for plaintiff” —and it is signed by them. All of the details of the injuries, both actual and anticipated, are set out in the petition, and claim is made for mental pain and humiliation, and for loss of earning-power after arriving at 21 years of age and until his death, which is fixed at $19,200. .The damages for the physical and mental pain suffered and to be suffered is fixed at $10,000. Complaint was made in a motion to strike of the use in the petition, as originally drawn, of the words, “that the defendants and each of them are members of the Osage Tribe of Indians and have large incomes and large estates.” It was averred in the motion that this was’not material and was prejudicial. The court struck out the allegation as to being Osage Indians, but left in the petition the statement about defendants having large incomes and large estates. The motion to strike complained of paragraph 5, above set out. Request was made that there be stricken from the petition paragraph 10, which is as follows: “10. That by reason of the foregoing, the plaintiff has suffered and will continue to suffer great physical and mental pain, and that it is very highly probable that an *18 other operation on the skull ancl brain will be necessary in which event the plaintiff will suffer further and additional pain and be caused further and additional expense.” And, also, paragraph 12, which is as follows : • “12. .That by reason of the condition of plaintiff as aforesaid, caused by the negligence of the defendants as aforesaid, the plaintiff will have to go through life handicapped by said injuries as aforesaid, and will suffer great mental pain and humiliation- and will continue to go through his life suffering physical pain.” And, also, paragraph 13, which is as follows : “13. That by reason of the foregoing, the earning capacity of the plaintiff has been injured and decreased at least 50 peícent. and that the ordinary length of life of the plaintiff was and is at least 50 years after the time of said injury, and that after the plaintiff arrives at the age of 21 years he should be earning at least $100 per month, and that he has therefore been damaged in the sum of at least $50 per month from the time he arrives at 21 years of age until his death, or a total of $19,200.” The court refused to strike out anything except that the defendants were Osage Indians, and the defendants excepted to the orders. This was followed by a motion to require the plaintiff to make his complaint at paragraph 4 more definite and certain, and also to require the plaintiff to more definitely and certainly plead the custom, alleged to exist in Fairfax, whereby children play in the streets, and on what the custom was based. In the third paragraph of the motion, request was made to compel the plaintiff to show in what way the defendants did not keep their car in good condition. The court required the ordinance to be' attached, and overruled the balance of the motion,' and the defendants excepted. After a demurrer was overruled, an answer was filed containing a general denial, averring that the car was being driven by a careful driver, and that after he had crossed Locust street, and driving at a reasonable rate of speed, and at a slower rate of speed than the law of the state of Oklahoma permitted, and while in the act of passing a car, parked some 40 feet from the Locust street crossing, the plaintiff carelessly and negligently stepped out into the street directly in front of the defendants’ car, and that the plaintiff had not been observed by defendants’ chauffeur prior to' his stepping out from in front of the radiator of the parked car, the parked ear being headed south, and that when the plaintiff did this, the chauffeur swerved the car to the left to avoid injuring the plaintiff, applying the brakes, took all reasonable diligence to avoid any injury to the plaintiff, and did avoid striking him with a direct collision, and if the car struck the plaintiff at all, it was a glancing blow from the right rear fender. They further pleaded that the accident was due entirely to the carelessness and negligence of the plaintiff, and was not due to any negligence or carelessness whatsoever on the part of the defendants. .They further pleaded that the injury was an unavoidable accident, and they pleaded contributory negligence on the part of the plaintiff, the contributory negligence being that he was concealed from view of the defendants’ car, and stepped out from the concealment directly in front of the defendants’ car in a careless and negligent manner, and that without such carelessness and negligence, the accident complained of would not have occurred. The opening statement of counsel for the plaintiff is found beginning on page 77 of the case-made. The accident happened on Main street in Fairfax, and in the block just south of the business section, according to the opening statement. The language of tire attorney, on page 78 of the case-made, is as follows: “The evidence will show that this boy was out in this parking or oval in the center of the street, and that the defendants’ car came along, being driven by a colored boy, and that the little boy, the plaintiff, was standing on the curbing at the edge of the parking in the center of the street, and that the driver of the car either thought the boy was going out in the street, or for som© reason, which we do not know, started his car upon to the parking in the center of the street and run over the boy — hit him on the back of the head and knocked him down. “Now, it has been our information that the defendant claims that the boy came from the other side of the street next to the house and was crossing over to the parking in the center of the street. We do not think that is correct, but, however, it is our position that whichever way the boy was, that the defendants are responsible for the hitting of the boy. The defendants themselves were not in the car, but it was being driven by their driver, and under the-facts and under the instructions given to you by the court, you will be advised that the defendants are responsible just the-same as if they were driving the car, if' *19 there was negligence on the part of the driver.” The remaining portion of the opening statement was devoted to detailing the injuries received and their effect upon the plaintiff. The opening statement of the attorney for the defendants can be found at page 81 of the case-made, and, in that statement, it was claimed that the car was being operated with all care, and that when it became apparent that there would be a collision with the child, the car was turned as quickly as possible upon the curb, and was stopped as quickly as possible, and that it was an unavoidable accident. At page 82, this statement is found in the opening-statement by the attorney: “The evidence will show that this boy was a four year old boy, a little white boy, that the driver of the car was a negro, and owned by Osage Indians. We realize that that is a fact, and we realize that that will be evidence that might in some way be tending to prejudice. We want you to understand we are fully aware that the accident did happen, that upon the happening of the accident, the negro, together with the son of these defendants, picked this little boy up, took him to the hospital. Doctor Shoun, who is in charge of the hospital, took charge of the child. An examination was made, and that nothing showed in that examination that the child was injured.” There was a further statement that at the instance of the defendants, the child was kept in the hospital, and that when discharged there were no signs of injury, and that the accident occurred on the 5th day of February, and until the action was brought on the 21st of June, the injury was not made known to the defendants. There was a further statement that the driver, in an attempt to safeguard the life of the child, turned his ear into the parkway, and stopped in the length of the car, and they further claimed that there was no negligence, and that everything was done to avoid the accident. Under these conditions, it was incumbent on the plaintiff to establish the allegations of negligence as claimed in the petition, and as claimed in the opening statement. As applied to this case, the eyewitnesses to the accident were two children, on the part of the plaintiff, closely related to the plaintiff, and on the part of the defendants below, the driver of the ear, a colored man, and a 17 year old son of the defendants, and two adults, who apparently were disintere-ted, Armiel Staber and Mrs. Anna Sitterly. In the examination of the children, the attorney generally indicated and suggested the answers desired. Fairly illustrating is Mr. Chas. Gray’s examination of Freeland Keimedy, as follows (C.-M. 89) : “Q. And it was going south down the street, was it? A. It was going south down the street. Q. Going away from town? A. Yes, sir. Q. Did you see Jack at the time that you first saw the car? A. Well, I looked at the ear, and then I looked at Jack, and said, ‘Get back or that car will run over you, Jack.’ Q. Now, what was the ear doing, or where was it when you first saw it? A. When I first saw it, it was about ten or fifteen yards from Jack. Q. What did it then do? A. It ran up on the curb and hit him. Q. Now, Jack, as I understand, was standing on the edge of the curb, of the curbing that is around the parking in the center of the street, is that right? A. Yes, sir. Mr. Walter Gray: We object to it; that is leading and suggestive. By the Court; Yes, you are leading the witness. Q. (J3¡y Mr. Chas. Gray) : All right, now just go ahead and tell in more details, Freeland, just what the car did; what you saw there — tell these jurors here just what you saw? A. Well, the car came up the street and hit Jack and knocked him out in the street and then it run up on that grass plot there until it got near to the end of it and then it stopped and started backing up, and that fellow that run around in front of the car he run around back down there and picked Jack up. Q. . Who run around in front of the car? A. I don’t know his name, it was an Indian. Q. I see; now Freeland, before the ear hit Jack, was it up on the grass part of the parking-in the center of the street? A. Yes, sir, three wheels of it was and the other one— the hind wheel was hitting kind of, the right hind wheel. Q. Was it next to the curb? A. Yes, sir, it was right next to it, it didn’t go up on it until it got right near to Jack, and then it went upon the grass plot and hit him. Q. And the whole of the car was up on the grass then at the time it hit him? A. Yes, sir. Q. Now, could you tell what part of the car hit him? A. Well, the right hand bumper hit him. Q. And what did it do to him? A. He just fell and it knocked him out on the street and he just rolled over. Q. Freeland, did this car that was parked there did it obstruct your view of seeing the Haskell car when you first did see it? A. No, sir. Q. You eou'd see it all right? A. Yes, sir. Q. (C.-M. p. 92) Did Jack move during any of the time? A. No, sir. Q. Until the car hit him? A. No, just stood still until the car hit him and knocked him out into the street.” The other child, Dewey Kennedy, was led in the same manner. A sample of the examination is as follows (C.-M. 144) : *20 “Q. Don’t know the other boys? A. No, sir. Q. White boys or Indian boys? A._ i think there was one Indian and one white. Q. One Indian and one white; did you see that car run into Jack? A. Yes, sir. Q. I wish you would tell the court and these men over here and talk out so that they can all hear you — tell them just what you saw. The Court: Speak right out now loud. A. (C.-M. 144) Well, I saw the car coming up the street and Jack was standing about two and a half feet from tne curb, and the car run up on the sid< walk, 25 or 30 feet, 1 don’t know which, and ¿.it him and knocked him down on the street about a foot and a half. Q. Now, did y< u.( say Jack was standing about two feet from the curb? A. I said about a foot and a¡ half. Q. About a foot and a half? Which way was he standing from the curb? Aj Well, he was standing towards — I ju t don’t know for sure which way he was! standing. Q. Was he standing out in the street or on the grass? A. On the grass.