
    OKLAHOMA PRODUCING & REFINING CORPORATION OF AMERICA v. WHALEN.
    No. 13159
    Opinon Filed Jan. 30, 1923.
    (Syllabus.)
    1. Municipal Corporations — Violation of City Ordinance Regulating Travel on Streets — Prima Facie Evidence of Negligence — Burden of Proof.
    The driving of an automobile truck on the wrong side of the street in violation of the ordinance of a city providing for regulation of travel is prima facie evidence of negligence, and casts upon such party the burden of overcoming the presumption and showing that the violation of the ordinance was excusable under the circumstances existing at the time such negligence is alleged t@ have occurred.
    2. Negligence — Act in Emergency Not Negligence.
    A person in a sudden emergency may act In good faith according to his best judgment, and his failure to act in the most judicious manner is not chargeable with negligence per se. Where there is an issue under the pleadings and evidence as to such act constituting negligence, it should be submitted' to the jury under proper instructions.
    3. Appeal and Error — Trial—Duty of Trial Court to Give Proper Instructions.
    It is the duty of the trial court upon Its own motion to properly instruct upon the issues made by the pleadings and the evidence introduced at the trial of the cause, and a failure to do so constitutes fundamental error.
    4. Same — Effect of Failure to Request Instructions.
    Where the trial court incorrectly instructs the jury in such a way as to constitute prejudicial error, such error is not cured or waived by the failure to request a proper instruction.
    Error from District Court, Oítlahoma County; Edward D. Oldfield, Judge.
    Action by George H. Whalen against the Oklahoma Producing & Refining Corporation of America to recover damages for personal injuries sustained. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded.
    Ross & Thurman, for plaintiff in error.
    Rohinett & Ford, for defendant in error.
   KENNAMER, J.

George H. Whalen instituted this action in the district court of Oklahoma county against the Oklahoma Producing & Refining Corporation of America, a corporation, defendant, to recover damages for personal injuries sustained as a result of the negligence of the defendant. The plaintiff, George H. Whalen, was injured in the same accident, where the automobile truck and motorcycle collided in Tulsa, which was considered and reviewed in the case of L. R. Freeman v. Oklahoma Producing & Refining Corporation of America. The two cases were tried and submitted to the same jury, and the appeals were consolidated by stipulation of the parties and order of this court.

George H. Whalen was awarded $6,000 damages by the verdict of the jury, and the motion of the defendant for a new trial was overruled after the plaintiff filed a remittitur of $3000. The same assignments of .error are presented on this appeal for a reversal of the judgment of the trial court as have been considered and passed upon in the case of Oklahoma Producing & Refining Corporation of America v. Freeman, No. 13160, this day decided.

We deem it unnecessary to pass upon the question of the Verdict of the jury being excessive and the result of passion and prejudice, as the same instruction was given in this case a's that which was given in the Freeman Case, and held to constitute reversible error. Under the authority of the case of Oklahoma Producing & Refining Corporation of America v. L. R. Freeman, No. 13160, which opinion was this day filed, the judgment is reversed, and the cause is remanded, with directions to grant the defendant a new trial.

NICHOLSON, COCHRAN, BRANSON, and HARRISON, JJ„ concur.  