Atchison, Topeka & Santa Fe R.R. Co. v. Johnson
| Decision Date | 07 September 1895 |
| Citation | 3 Okla. 41,1895 OK 58,41 P. 641 |
| Parties | THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. JOHN R. JOHNSON. |
| Court | Oklahoma Supreme Court |
Error from the District Court of Logan County.
¶0 1. INSTRUCTIONS TO JURY--Special Findings. Under the code of civil procedure, of the Statutes of Oklahoma, of 1890, § 4574, which provides that "the court, in all cases, when requested by either party, shall instruct them, if they render a general verdict, to find specially upon material questions of fact, to be plainly stated in writing," it is not error to refuse an instruction, which, upon the submission of special questions for the jury, "instructs them that it is your duty to answer each of said questions fairly as you shall find the truth to be under the evidence, without regard to your general verdict," The provision of the statute is that the jury shall make special findings only upon condition that they return a general verdict, and it would be error to instruct them to make such findings without regard to such general verdict.
2. SPECIAL INTERROGATORIES. If the record discloses that special interrogatories have been submitted to the jury, and that they have been returned into court by the jury in connection with their general verdict, at the request of the defendant, and that "the court submitted said certain special questions of fact for the jury to answer and return," such statements made in the record will be sufficient to show that special interrogatories were in fact submitted and answered by the jury, as provided by the statute, notwithstanding that no express and written instruction from the court to the jury to that effect appears in the record.
3. SAME--Evasive Answers--Effect. If the jury returns evasive or equivocal answers to some of the special interrogatories proposed, and a motion is made to the court to remand the jury and require them to return definite answers to such interrogatories, and the motion is refused, and the party to the cause making such motion is not damaged by such evasive or equivocal answers, such refusal of the court to remand and direct the jury is not reversible error.
4. SAME--Equivocal Answers Construed. If the jury, in making a return to special interrogatories in connection with the general verdict, returns evasive, equivocal or uncertain answers, not stating the result of the evidence, either in the affirmative or in the negative upon the point, it is simply a finding that adequate proof has not been produced, at the trial, of the existence of the fact upon which the question has been proposed, and that it is not made out by proof, and is equivalent to a finding against the party holding the affirmative upon such fact.
5. RAILROAD CARS--Trespasser on--Rights of. A person who gets upon the freight train of a railroad company, without the knowledge of the conductor, and under direction of a brakeman of the train, places himself in a box car, making a payment for his passage to the brakeman, does not, by making such payment and accepting such direction from the brakeman, contract with the railroad company for his passage. He is not a passenger, but a trespasser. He is not entitled, at the hands of the railroad company, to that high degree of care to which a passenger is entitled, but only to the right to be exempt from wanton and wilful injury at the hands of the company.
6. PASSENGER -- When Guilty of Contributory Negligence. The caboose of a freight train is the proper place to which persons must go, and take their places, who intend to become passengers upon the train. A box car is a place of increased danger, and if one seeks to be a passenger, and voluntarily places himself in such a car, he will be guilty of such contributory negligence as will preclude recovery against the company for an injury received while occupying such a position.
7. SAME. If one, who undertakes to be a passenger upon a freight train, voluntarily places himself in a box car, leaves his place back in the car and goes to the open door of the car while the train is in motion, and is, by a sudden shock of the train, thrown from the door and injured, he is guilty of such contributory negligence as will preclude recovery from the railroad company.
8. JURY--Special Findings--Duty of Court. In a case in which the plaintiff takes passage upon a freight train of defendant which has a caboose attached, and goes into the box car upon the train which is not provided by the company for the accommodation of passengers, and the plaintiff was not allowed to take passage upon such train under the rules of the company, and his presence on the freight train was unknown to the conductor, engineer or fireman, but was known to a brakeman to whom the plaintiff gave a dollar for his ride, which was less than the regular fare, and the brakeman had no authority to collect the dollar from the plaintiff, and the plaintiff knew that the train on which he took passage was not a passenger train and that the car in which he took passage was not provided by the company for carrying passengers, and the plaintiff was thrown from the car by the stopping of the train, while he was leaning from the door of the car, and would not have been injured if he had remained back in the car until the train stopped, and these facts were all found by the jury upon special interrogatories proposed by the defendant in connection with the general verdict for the plaintiff for damages in his behalf, and the defendant thereupon filed his motion for judgment on the answers of the jury to the special questions, it was error in the court to overrule such motion, and the ruling of the court should have been for judgment in favor of the defendant upon such special findings of fact.
Asp, Shartel & Cottingham, for plaintiffs in error.
Keaton & Cotteral and E. Turner, for defendant in error.
¶1 On the 11th day of August, 1891, the defendant in error, as plaintiff, filed his complaint in the district court for Logan county to recover damages for personal injuries received by him at Guthrie, Oklahoma, while riding from Purcell, Indian Territory, to Guthrie, in a box car in one of defendant's freight trains.
¶2 Plaintiff claimed in his petition that he was a passenger, and that he was jerked and thrown from the car in question by reason of the negligence of the defendant's servants. The defendant plead by a general denial, and by the allegation that the plaintiff was not a passenger but was a trespasser on the train, and that the injuries were received in consequence of his own negligence in jumping from the train while it was in motion. To the answer of defendant the plaintiff replied, denying generally the allegations of the answer, and setting up a specific denial of the matters set up in the answer as a defense. The case was tried on the 26th and 27th days of October, 1893, and resulted in a verdict for the plaintiff for the sum of five thousand dollars.
¶3 It was alleged by the plaintiff that on the 3d day of February, 1891, at about 8 o'clock P. M., the defendant, in consideration of the sum of one dollar, then and there paid to its agent, a brakeman on one of its freight trains, by the plaintiff, undertook and agreed, as a common carrier, to transport and convey the plaintiff from the town or village of Purcell to the town or village of Guthrie, as a passenger, and the plaintiff, being so directed by one of the agents of the defendant, thereupon entered one of its freight cars, to be conveyed from the town or village of Purcell to the town or village of Guthrie; that while being so conveyed in said freight car the plaintiff saw the conductor of the freight train to which the freight car was attached, and that said conductor was fully cognizant of the fact that plaintiff and other persons were being conveyed on said train, and also that plaintiff and "many other persons had upon various occasions been transported upon defendant's freight train, by and with consent of, and by paying fare to, the conductor thereof."
¶4 It was further alleged that the plaintiff, while he was such passenger, at the town or village of Guthrie, and without negligence or fault on his part, but while he was standing in or near the door of the said freight car preparatory to getting off the same, was, through the unskillfulness, carelessness, negligence and fault of defendant and its agents in causing the said train to greatly slacken its rate of speed and then to suddenly start forward at a much more rapid rate, without allowing him sufficient time to safely get off, thrown from said car and run over by a portion of said train. With their special verdict the jury returned into court special findings, as follows:
To continue reading
Request your trial
-
Reuck v. Green
...inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly." A.. T. & S. F. Ry Co. v. Johnson 3 Okla. 41, 41 P. 641: Blevins v. A., T. & S. F. Ry. Co., 3 Okla. 512, 41 P. 92. ¶29 We think, as was said by this court in the case of Stand......
-
Atchison, T. & S. F. R. Co. v. Johnson
... ... Action ... by John R. Johnson against the Atchison, Topeka & Santa Fé ... Railroad Company. Judgment for plaintiff, and defendant ... brings error ... ...
- Folley v. Chi., Rock Island & Pac. Ry. Co.