State Ex Rel. Department of Highways v. Ray I. Jones Service Co.

JACKSON, Justice

(concurring specially).

47 O.S.1961, Sec. 14 — 114(b), provides in part:

“The owner, driver, and any other person * * * responsible for any vehicle operating under an * * * oversize permit shall be responsible for any damages to highway bridges * * * caused by the operation of such vehicle, whether caused by negligence or not * * * tf

This section of the statute imposes strict liability upon truck drivers and owners who are operating under oversize permits.

47 O.S.1961, Sec. 14 — 115(b), as amended, requires an applicant for an oversize permit to describe the vehicle and load to be moved “and the particular highways for which permit to operate is requested.” Subsection (a) of Section 14-115, as amended, provides that “special permits may prescribe the hours of the day when valid, the highways to be used and such other conditions as the issuing officer may consider proper under the circumstances.”

The permit issued in this instance authorized the load, 16 feet in height, to be transported over Highway 81, Highway 33, and then a country road. The permit further provided:

“If this load exceeds the height of overhead structures all such structures shall be bypassed.”

*145 The permit did not explain how the structure would be bypassed, or what alternative roads might be used in transporting the load to its designation.

Section 14-115(b), as amended, authorizes the Commissioner of Public Safety to prescribe the highways to be used. It does not authorize the driver of the truck to prescribe the highways to be used, although the permit does. The Commissioner of Public Safety has no legislative authority to delegate his powers of selecting the highways to be used to truck drivers. That authority and responsibility was placed upon the Commissioner of Public Safety. I am of the view the Commissioner did not discharge that responsibility in this instance.

Plaintiff makes the argument that it would be impossible for the Commissioner to be aware of the height and weight carrying capacity of all bridges in the State. I think the Legislature shared that view as to the weight carrying capacity of bridges, but not as to their height and width. Height and width are not mentioned in the last sentence of Section 14-114(b) wherein it is provided that “The issuance of any special permit shall not be considered a warranty of any bridge or highway to support the permitted load.” (emphasis supplied).

Although the Commissioner, in my opinion, was derelict in prescribing the use of Highway 81 in this instance, I do not believe that the Legislature intended that contributory negligence would be a defense. The Legislature intended that the driver and owner of the truck would be liable for the damages to the bridge caused by the operation of the vehicle notwithstanding the issuance of the permit. If defendants’ conduct in this case was not the proximate cause of plaintiff’s damages the plaintiff should not prevail.

I do not believe Missouri, Kansas & Texas Ry. v. Bandy, 75 Okl. 57 , 181 P. 313 , announces the correct rule to be applied in this case. In connection with railroad right-of-way cases it has been said that the railroad company is required by statute to fence its right-of-way; that a farmer is entitled to pasture his land whether the right-of-way is fenced or not; and that the farmer may recover damages for animals injured on the railroad track unless he is willfully negligent. In the instant case plaintiff may not prevail if plaintiff caused the accident whether its conduct was willful or not.

This case was pled and tried by the plaintiff and defended by defendants as a negligence case. Plaintiff did not object to any of the instructions given; did not request any instructions; and did not demur to defendant’s evidence, nor move for a directed verdict. Following the verdict no motion was made for judgment notwithstanding the verdict (assuming that such a motion would have been appropriate). In motion for new trial plaintiff asserted that (1) the verdict is contrary to the law and (2) the verdict disregards the Court’s instructions. In petition in error plaintiff asserts that (1) the verdict was contrary to and in disregard of the Court’s instructions ; (2) the verdict was contrary to law; and (3) that the verdict is contrary to the statutory law of the State of Oklahoma.

I believe we are justified under former decisions in reviewing the record to determine (1) whether the verdict is contrary to the law and (2) whether the jury disregarded the Court’s instructions.

In this case the trial court instructed on negligence and contributory negligence on theories alleged in the pleadings and then quoted the substance of the law as set forth in 47 O.S.1961, Secs. 14-114, and 14 — 115 as amended. We have held that instructions must be consistent and harmonious. Schulte v. Garrett (1924), 99 Okl. 52 , 225 P. 904 . The instructions in this case were not consistent. We have held where the trial court incorrectly instructs the jury in such a way as to constitute prejudicial error such error is not waived by a failure to request a proper instruction. Oklahoma Producing and Refining Corp. of America v. Freeman (1923) *146 88 Okl. 166 , 212 P.2d 742 . In Deal v. State (1928), 129 Okl. 128 , 263 P. 1094 , and in McIntire v. Burns (1935), 172 Okl. 152 , 42 P.2d 143 , we held in substance that it is the duty of the trial court upon its own motion to properly instruct the jury upon the decisive issues formed by the pleadings and the evidence. In International Harvester Co. v. Snider, 184 Okl. 537 , 88 P.2d 606 , we said:

“It is the duty of the trial court upon its own motion to properly instruct upon the decisive features of the case and a failure to do so constitutes reversible error.”

The decisive issues in this case were not formed by the pleadings hut by applying the applicable statutory law to the evidence in the case. The case should be returned to the trial court for new trial, and preferably upon amended pleadings.