Atchison, T. & S. F. R. Co. v. Molone
| Decision Date | 12 April 1921 |
| Docket Number | 10063. |
| Citation | 197 P. 164,81 Okla. 193,1921 OK 125 |
| Parties | ATCHISON, T. & S. F. R. CO. v. MOLONE. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Record examined, and held, that the trial court did not err in overruling the demurrer to the evidence nor in refusing to direct a verdict for the defendant.
That the evidence reasonably tends to support the verdict and the judgment rendered thereon.
That the remaining errors complained of are without merit or are harmless under section 6005, Rev. Laws 1910.
Appeal from District Court, Pontotoc County; J. W. Bolen, Judge.
Action by W. B. Molone against the Atchison, Topeka & Sante Fé Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Cottingham & Hayes and Geo. M. Green, all of Oklahoma City, for plaintiff in error.
Wimbish & Duncan, of Ada, for defendant in error.
This was an action for damages for personal injuries, commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below. Upon trial to a jury there was a verdict in favor of the plaintiff upon which judgment was duly entered, to reverse which this proceeding in error was commenced. Hereafter, for convenience, the parties will be designated "plaintiff" and "defendants," respectively, as they appeared in the trial court.
It appears that the plaintiff was employed by the defendant as a section hand, and that at the time of his injury he was riding on a small motorcar under the care and control of the section boss; that while thus engaged a dog ran onto the track some 250 feet ahead of the car and continued to run toward the car until a collision occurred which threw the car from the track, injuring the plaintiff. It was alleged in substance that the motorcar was of light weight and easily thrown from the track; that said section boss saw said dog or by the use of reasonable diligence could have seen him; that said section boss paid no attention to the warning given of the approach of said dog and did not slack up or give any alarm or make any attempt to scare said dog off the track but that he "willfully ran into, over, and against said dog."
The answer set up a general denial, assumption of risk, and a release. The reply was a general denial and that the release was procured by fraud, duress, and without consideration.
Counsel for the defendant have summarized their grounds for reversal in their brief as follows:
(1) The court should have sustained the demurrer to the evidence.
(2) The court at the conclusion of the testimony of the defendant should have directed a verdict for the defendant.
(3) The court erred in giving its instructions Nos. 2, 3, 4, 5, 9 and 12.
(4) The court erred in refusing to give to the jury special instruction No. 9.
(5) The court erred in refusing to give to the jury defendant's requested instruction No. 6 and erred in giving instruction No. 9.
As the evidence reasonably tended to establish the allegations of the petition as summarized in the foregoing brief statement of facts, we think it was sufficient to take the case to the jury on the question of negligence. The demurrer to the evidence was properly overruled.
The second assignment of error is based upon the theory that there was a fatal variance between the pleadings and the proof. In support of this counsel say that, although the petition charges that the defendant "willfully and wantonly ran into, over, and against said dog," the evidence tended to show nothing more than ordinary negligence. We are not impressed by this argument.
We think the petition alleges and the evidence tends to show a case of ordinary negligence. It is true that after stating the facts substantially as hereinbefore set out the plaintiff further avers that the section boss "willfully and wantonly...
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