¶ 1 I would let the jury decide whether the City's driver was negligent. This is not such a case "where the admitted facts are so conclusive" that reasonable men could not disagree. Gwinn v.Payne, 1970 OK 145, ¶ 20, 477 P.2d 680, 683. While the majority emphasizes that the City's driver was familiar with the road and the intersection, it was the slipperiness of the road that was important. The evidence showed that other cars and people slipped on the unexpectedly slippery surface. After he slid, the driver witnessed a Ford Bronco with big mudder tires apply its brakes and slide all the way down the hill in the uphill lane of traffic and out onto Riverside Drive. He also saw a Chevrolet Citation slide into the curb, blow out the right front tire, go up on the grass and knock over a speed limit sign. The fact that others were lucky enough not to hit the plaintiff or other cars does not necessarily prove City's driver was negligent. *Page 467
¶ 2 The majority seems to say that the fact City's Driver hit plaintiff demonstrates negligence: "City's Driver was not driving prudently as he could not bring it to a stop without colliding into another vehicle legally on the roadway." Opinion, ¶ 12. Of course, the fact that an accident occurs is not evidence of negligence. See Keiffer v. Strbac, 1960 OK 14, 349 P.2d 6, 8 ("The prevailing view taken by the courts is that skidding itself is no such evidence of negligence that the driver of the car that skidded should be required to rebut the inference of negligence."); Ayers v. Amatucci, 1952 OK 124, 243 P.2d 716 (The fact that an injury occurs carries with it no presumption of negligence.) And whether the driver was driving prudently was a question for the jury. The majority's statement regarding the driver's actions are slightly one-sided: "Despite the rain and the nature of the route, City's driver traveled at no less than the posted speed limit." Opinion, ¶ 4. The driver did testify he was driving at the 25 mph posted speed limit. Such a speed, even when it had been raining may have been determined by a jury as a prudent speed. And if the driver suddenly, without warning, hydroplaned on the wet asphalt, a reasonable jury may have found an unavoidable accident.
¶ 3 The cases relied on by the majority support this position.Athey v. Bingham, 1991 OK 82, 823 P.2d 347, specifically approved an unavoidable accident instruction. The Supreme Court held that based on
823 P.2d at 850.icy road conditions, the speed of both drivers, and the speed of other drivers in the stream of traffic, the evidence was sufficient to present as questions of fact the propositions that both parties were driving prudently for the conditions, and that the collision was unavoidable in spite of such prudent driving. The road conditions were comparable to those in Keiffer [v. Strbac, 1960 OK 14, 349 P.2d 6], Duncan [v. United States, 98 F.Supp. 483 (E.D.Okla. 1951)] and Gwinn [v. Payne, 1970 OK 145, 477 P.2d 680], all supra, where sudden skidding was acknowledged to occur absent fault on the part of either driver.
¶ 4 The Supreme Court in Keiffer held that sudden and unexpected skidding is one of the natural hazards of driving on icy roads and it may happen to the best of drivers.349 P.2d at 8. The court in Duncan held that it was a matter of common knowledge that skidding on a slippery road may occur without any fault of the driver. 98 F.Supp. at 485.
¶ 5 The citation to Newport v. Terry, 2000 OK 59, ¶ 32,11 P.3d 190, 199, is unavailing. In that case, the question was whether the insurer unreasonably and in bad faith failed to settle with its insured. When complaining that an unavoidable accident instruction should have been given, the Supreme Court said the "roads were visibly icy during a sleet storm. In addition, [the insurer's] investigation and evaluation of the claim had always indicated negligence on the part of one or both parties." Id. One cannot extrapolate from that quote that "if slick roads are foreseeable under the weather conditions, the instruction should not be given." Opinion, ¶ 9. In effect, the majority holds that Newport, a bad faith case, overrules, subsilencio, Athey which specifically addresses the issue.
¶ 6 Rather, Athey gives the primary law on when the unavoidable accident instruction should be given, which comports with the facts in this case, and is more current law than the 1954 case of Huey v. Stephens, 1954 OK 222, 275 P.2d 254. The Supreme Court distinguished Huey in Athey on the ground that in Huey there was no evidence the road was "wet, slick or slippery." 823 P.2d at 348. The reference to Huey is also confusing. Opinion, ¶ 10. The current uniform instruction, No. 10.9, states: "An unavoidable accident is one which occurs without negligence on the part of either party. If you find from the weight of the evidence that the accident was unavoidable, then your verdict should be for [Defendant]." The Notes on Use go on to state "[a] showing of adverse road conditions or a latent mechanical defect in an automobile might warrant the giving of this Instruction."
¶ 7 Thus, while the driver knew it had rained earlier and was familiar with the street, it was for the jury (not this Court) to decide whether driving at 25 mph was prudent and whether the sliding was "caused by unforeseen circumstances or conditions and *Page 468 not by the negligence of either party." Ankney v. Hall,1988 OK 101, ¶ 13, 764 P.2d 153, 156. The majority is weighing the evidence when it suggests that because there was a rear end collision, the only conclusion, as a matter of law, is negligence.1 However, this argument was specifically rejected by the Supreme Court in Athey:
The plaintiff argues that the fact that the plaintiff was rear-ended by the defendant raises the presumption that the defendant violated several rule-of-the-road statutes: 47 O.S. 1981 § 11-310[47-11-310](a), 47 O.S. 1981 § 11-801[47-11-801](a) and (d). (Footnote omitted.) The cases, however, do not support her argument.The fact that a motor vehicle collision occurred does not necessarily raise the presumption that the defendant was following too close, driving too fast to bring the car to a stop, or driving too fast for highway conditions.
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823 P.2d at 349.Thus, the mere fact of a collision does not show a violation of the above cited statutes, nor such a showing of negligence that an unavoidable accident instruction would be improper.
¶ 8 As the majority says, the general rule is that the "determination of the question of negligence, that is, what is or what is not negligence, in nearly every case is a question for the jury." Opinion, ¶ 3, Gwinn v. Payne, 1970 OK 145, ¶ 20,477 P.2d 680, 683. The issue of whether an unavoidable accident instruction was warranted in this case was made irrelevant by the trial court's directed verdict on liability. The facts, when viewed in the most favorable light toward the City, were not so conclusive that reasonable persons could not disagree. The majority has determined City's driver was negligent just because he rear-ended plaintiff's car.
¶ 9 The real solution to this issue is what would have happened if the trial court had submitted the case to the jury, instead of finding negligence on its own, and the jury returned a verdict for the defendant. On appeal, would the jury verdict have been reversed? Athey provides the answer. Despite two jury verdicts for the defendant, who was traveling 25 mph while it was sleeting and the road was icy, and rear-ended the plaintiff, and notwithstanding two reversals by the Court of Civil Appeals, the Supreme Court affirmed the jury verdict for defendant.
¶ 10 I respectfully dissent.