In this action, plaintiff in error, as plaintiff, sued defendant in error, as defendant, for personal injuries he, as a pedestrian, received when struck by an automobile driven by defendant while he was crossing West Eighteеnth Street, in Tulsa, Oklahoma. After trial before a jury, the verdict was for defendant and judgment was entered accordingly. After the overruling of his motion for new trial, plaintiff perfected the present appeal.
Our continued reference to the parties will be by their trial court designations.
All of the assignments of error urged for reversal under the three propositions set forth in plaintiff’s brief concern alleged errors in the court’s instructions to the jury. Under his Proposition No. Ill, it is asserted that no instruction on sudden emergency as was the trial court’s Instruction No. 8, should have been given, in view of the facts in this case. In support оf this proposition, plaintiff says the defendant driver could not have been confronted with a “sudden emergency”, within the correct legal definition of that term, because the evidence showed that hе was not without fault, but, on the contrary, shows that if there was any so-called emergency it was caused, or contributed to, by defendant’s negligence by driving his auto at a rate of speed (by his own admission) of approximately 20 miles per hour in an area where the maximum speed limit was only IS miles per hour, citing Graves v. Harrington, 177 Old. 488,
Plaintiff’s Proposition No. 1, is as follows:
“The trial court erred in failing to instruct the jury on the decisive issues of fact formed by the pleadings and evidence introduced and the law applicable thereto and the failure of the trial court to do so constitutes fundamental and reversible error.”
*1077 Under this proposition, plaintiff charges that:
“The jury was never told that the decisive issues of fact in the case were:
“(1) Whether or not the defendant Cardwell was guilty of negligence in violating the speed limits or in violating the other ordinances of the City of Tulsa, or in failing to keep a proper lookout, or in failing to apply his brakes or in failing to blow his horn and in failing to drive at a speed commensurate with care that should have been exercised, and
“(2) Whether or not the plaintiff was guilty of contributory negligence, and
“(3) Whether or not the negligence of the defendant, which was established by the evidence was the proximate cause of the accident, or whether or not the contributory negligence of the plaintiff was the proximate cause of the accident.”
As to a рortion of (1) above, plaintiff’s counsel fails to point out, and we have not found, any evidence indicating that, as defendant drove down Eighteenth Street immediately preceding the accident, he fаiled to keep a proper lookout ahead of his car, or failed to apply his brakes. For all that the evidence shows, the defendant applied his brakes as soon as he saw plaintiff, or had any inkling of potential danger in the street ahead of his car, and he did this so forcefully that his tires made skid marks on the pavement measuring over 21 feet in length. Furthermore, no witness was asked, and the reсord does not show, whether defendant ever sounded his car’s horn before the accident, or not. The trial •court therefore committed no error in failing to specifically instruct the jury, as charged by рlaintiff, with reference to ■such facts not shown by the evidence.
We observe that in the court’s •general preliminary instructions delineating the allegations of the pleadings, he called the jury’s attention tо plaintiff’s allegation that defendant violated sec. 55 of Tulsa’s Traffic Code “which requires the driver of any vehicle approaching an unmarked intersection * * * (to) reduce his speed to 15 miles an hоur, which the defendant failed and neglected to do; * * In the court’s Instruction No. 5, he told the jury:
“It is the duty of a person, or persons, operating motor vehicles on the highways, streets and roads of this state to оbserve the state laws and ordinances with reference thereto, as set out herein, and a violation of a state law or ordinance, in the operation of a motor vehicle is negligence per se, that is, negligence in and of itself. However, before a person guilty of negligence per se may be held liable in damages therefor, it must appear from a preponderanсe of the evidence, that such negligence per se was the proximate cause of the injuries and damage, if any sustained.
“In this connection you are instructed that even independent of any сity ordinances any person operation motor vehicles on a highway, owes to the public and other vehicles and pedestrians the duty of controlling and driving such motor vehicle carefully so as to avoid causing injury, and in the performance of that duty they are bound to take all reasonable precautions which ordinarily prudent persons usually exercise under the same or similar circumstances.”
In its Instructions Numbered 6 and 7, the jury was given the legal criteria for determining whether or not a twelve-year old child, the age of plaintiff, was guilty of contributory negligence. In its Instruction No. 3, the court defined the terms “ordinary care”, “negligence”, “actionable negligence”, and “proximate cause”, and also told the jury, in regard to negligence, of the necessity of their finding that it was the proximate causе of the injury; and gave the jury the legal criteria for such a finding. In its Instruction No. 10, the court further told the jury:
*1078 “Should you find from a preponderance of the evidence herein that the defendant was guilty of any of the acts of negligence alleged in plaintiff’s petition, and that such negligence was the direct and proximate cause of the injury, if any, to the plaintiff, and plaintiff was not guilty of contributory negligence, then your verdict should be for the plaintiff and against the defendant; but if you do not so find, or if you find that the plaintiff was guilty of contributory negligence, which, combining and concurring with the negligence of the defendant, proximatеly caused the accident resulting in the injuries and damage, if any, then your verdict should be for the defendant, notwithstanding his negligence.”
Plaintiff’s counsel fails to point out any particular in which they think their client was prejudiced by the instructions given, except to charge, under their Proposition No. II, that the court’s instructions Numbered 1 and 4, placed an undue burden upon him “to establish all the material allegations of the Petition * * * Defense counsel calls our attention to the fact that, under the above-quoted Instruction No. 10, a verdict for plaintiff could be predicated upon finding, from the evidence, that defendant was guilty оf “any of the acts of negligence alleged in plaintiff’s petition * * * ”, We perceive, in the instructions complained of, some basis for a charge of inconsistency between Instructions numbered 1 and 4, оn the one hand, and Instruction No. 10, on the other, if said instructions are considered by themselves, and without regard to any of the others the court gave. And, we recognize the potential danger of giving any instruction, which on its face, is inconsistent with any other; and, we do not approve of such practice. However, defendant calls our attention to the fact that, in its Instruction No. 13, the court properly told the jury that it “must consider the instructions as a whole and not a part to the exclusion, of the rest.” Assuming, as we must, that,, in accord with this instruction, the members of the jury viewed each of the other instructions in the light of the instructiоns as a whole, we think it must have been plain to them that, of the allegations of defendant’s negligence contained in plaintiff’s pleadings, they were to consider only those which, under the court’s instructions, wеre material in establishing defendant’s liability to him for actionable negligence, and which were sufficiently supported by evidence. In holding harmless, an instruction given in St. Louis-S. F. Ry. Co. v. Withers, Okl.,