PITTMAN v. OKLAHOMA NATURAL GAS CO.

PITTMAN v. OKLAHOMA NATURAL GAS CO.
1951 OK 331
237 P.2d 1016
205 Okla. 371
Case Number: 34608
Decided: 11/27/1951
Supreme Court of Oklahoma

(Syllabus.)

¶0 APPEAL AND ERROR - Refusal of instructions not properly excepted to will not be reviewed. In order to bring up for review to this court the instructions of the trial court, exceptions thereto must be saved in the manner prescribed by statute, and the error in giving the same must be assigned in the motion for a new trial, otherwise, the assignment of error presents no question for review.

Appeal from District Court, Oklahoma County; Clarence Mills, Judge.

Action by R.L. Pittman against Oklahoma Natural Gas Company for damages for personal injuries. Judgment for defendant. Plaintiff appeals. Affirmed.

Carrol Womack, Oklahoma City, for plaintiff in error.

Kulp, Pinson & Lupardus, Tulsa, by Paul Pinson and Clyde H. Hale, Tulsa, for defendant in error.

JOHNSON, J.

¶1 This action was commenced in the district court of Oklahoma county by plaintiff in error, R.L. Pittman, plaintiff below, against the Oklahoma Natural Gas Company, a corporation, defendant in error, to recover damages for personal injuries received by plaintiff when he fell into an open ditch dug by defendant.

¶2 From a judgment for the defendant, plaintiff appeals.

¶3 The only question presented by plaintiff in this appeal is that the trial court erred in giving to the jury instruction No. 7.

¶4 The record discloses that when the trial judge gave the instructions he asked if there were any requested instructions; that plaintiff requested none, nor saved any exceptions to any of the court's instructions; that in plaintiff's motion for a new trial no assignment of error was made to the giving of any instruction.

¶5 In Kinney v. Williams, 66 Okla. 167, 168 P. 196, we said that in order to have instructions reviewed exceptions must be saved in manner provided by section 5003, R.L. 1910 (12 O.S.A. § 578), and the error in giving same must be assigned in motion for a new trial. And, in Garrett v. Mayor, 202 Okla. 602, 216 P.2d 965, we said that this court will not review alleged error in refusing an instruction on the trial of a cause, unless the refusal to give such instruction is excepted to at the trial and exception made to appear of record and the objection pointed out in the trial court by motion for new trial.

¶6 Judgment affirmed.

¶7 HALLEY, V.C.J., and CORN, GIBSON, DAVISON, O'NEAL, and BINGAMAN, JJ., concur.