Atchison, T. & S. F. Ry. Co. v. Baker

• Decision Date: 13 May 1908
• Docket Number: Case Number: 645 Ind Ter T
• Citation: 21 Okla. 51,1908 OK 80,95 P. 433
• Parties: ATCHISON, T. & S. F. RY. CO. v. BAKER.
• Court: Oklahoma Supreme Court

1908 OK 80

95 P. 433

21 Okla. 51

ATCHISON, T. & S. F. RY. CO. v. BAKER.

Case Number: 645 Ind Ter T

Supreme Court of Oklahoma

Decided: May 13, 1908

Syllabus

¶0 NEGLIGENCE--Contributory Negligence--Last Clear Chance. Although the rule is that, even if the defendant be shown to have been guilty of negligence, the plaintiff cannot recover if he himself be shown to have been guilty of contributory negligence which may have had something to do in causing the accident, yet the contributory negligence on his part will not exonerate the defendant and disentitle the plaintiff from recovering, if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the plaintiff's negligence.

Appeal from the United States Court for the Northern District of the Indian Territory, at Nowata; before Hoses Townsend, Judge.

On rehearing. Reversed and remanded.

For former opinion, see 104 S.W. 1182.Henry E. Asp, Charles H. Woods, and George M. Green, for plaintiff in error.

W. H. Kornegay, for defendant in error.

KANE, J.

¶1 This case was submitted to the Court of Appeals of the Indian Territory before statehood, and an opinion handed down reversing the judgment of the lower court. The opinion of the Court of Appeals is reported in 104 S.W. 1182. The statement of facts by Mr. Justice Townsend fully covers the case, and we will not repeat it here. A petition for rehearing was filed in due time, and was undisposed of when this court succeeded the Court of Appeals upon admission of the Indian Territory and the territory of Oklahoma into the Union as the state of Oklahoma. This court sustained the petition for rehearing, and the cause was submitted to this court upon briefs and oral argument.

¶2 After a careful examination of the record and a review of the authorities cited by counsel in their briefs and very full and able oral arguments we are convinced that the judgment of the court below ought to be reversed and the cause remanded for a new trial. In order, however, that there may be no misapprehension when the cause comes on to be tried below, we wish to notice some features of the case which were apparently overlooked by our Brothers of the Court of Appeals.

¶3 We agree with the Court of Appeals that it was reversible error for the court below to submit to the jury the question of gross negligence or willful or intentional injury in that part of its instruction No. 9, which reads as follows:

"The jury are instructed that, if they believe from the evidence in this case that plaintiff was guilty of negligence which materially contributed to the accident by driving upon the track of the railroad without first stopping and looking and listening to see if a train was approaching, then the defendant cannot be found guilty in this case, unless you believe from the evidence that the defendant's servants were guilty of willful or intentional acts, and the injury was occasioned by such willful or intentional acts of omission or commission on the part of the defendant's servants or employes."

¶4 There is no allegation in the complaint of willful or intentional acts of commission or omission on the part of the plaintiff in error, its servants, or employes; neither was there any proof that reasonably tended to indicate any willful or intentional acts of commission or omission. There being no allegation in the complaint or evidence in the record upon which to predicate such instruction, it was error to give it. The authorities cited by the Court of Appeals in its opinion, supra, to wit, East Tenn. Coal Co. v. Daniel, 100 Tenn. 65, 42 S.W. 1062; Jacquin v. Grand Ave. Cable Co., 57 Mo. App. 320; Greathouse v. Croan (an Indian Territory case) 4 Indian Terr. 668, 76 S.W. 273, fully support this proposition

¶5 On the other instructions criticized we cannot agree with the Court of Appeals. The following instruction was requested by the plaintiff in error, and refused by the court:

"The jury are instructed that, if they find from the evidence that the plaintiff, Baker, could have seen the train, and could have heard the train by looking and listening, and you find from the physical facts that he could have seen the train had he looked and heard the train had he listened, notwithstanding the fact that he has testified that he looked and listened and neither saw nor heard the approaching train, then you should find for the defendant."

¶6 Another instruction requested is the following:

"The court instructs the jury that, if plaintiff, Baker, saw the train approaching, and yet undertook to cross the track instead of waiting for the train to pass, and was injured thereby, you must find for the defendant."

¶7 This the court refused, and gave to the jury the following instruction.

"The court instructs the jury that, if the plaintiff, Baker, saw the train approaching in time to avoid the injury by the exercise of ordinary caution, and yet undertook to cross the track instead of waiting for the train to pass, and was injured thereby, you must find for the defendant."

¶8 Of the first instruction quoted above the Court of Appeals says: "This instruction unquestionably states the law correctly" --and of the second: "This would imply, regardless of the question as to whether he had looked and listened for the train, if he did not see the train in time to avoid the injury after he saw the train by the exercise of ordinary care and caution, he was entitled to recover. This, in our judgment, would not be stating the law correctly." To our mind both of the instructions requested were properly refused, because they deprived the defendant in error of the benefit of the doctrine of the last clear chance. The instruction as modified and given is subject to the same criticism.

¶9 Let us now see what this doctrine of the last clear chance is, and if we are right in holding that the case at bar is one where it may properly be invoked. The Supreme Court of the United States, in the case of Inland & Seaboard Coasting Co. v. Tolson, 139 U.S. 551, 11 S. Ct. 653, 35 L. Ed. 270, states the doctrine as follows:

"'There is another qualification of this rule of negligence which it is proper I should mention. Although the rule is that, even if the defendant be shown to have been guilty of negligence, the plaintiff cannot recover if he himself be shown to have been guilty of contributory negligence which may have had something to do in causing the accident; yet the contributory

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