Bartlesville Interurban Ry. Co. v. Quaid

• Decision Date: 14 September 1915
• Docket Number: 4821.
• Citation: Bartlesville Interurban Ry. Co. v. Quaid, 151 P. 891, 51 Okla. 166, 1915 OK 639 (Okla. 1915)
• Parties: BARTLESVILLE INTERURBAN RY. CO. v. QUAID.
• Court: Oklahoma Supreme Court

151 P. 891

653, 51 Okla. 166, 1915 OK 639

BARTLESVILLE INTERURBAN RY. CO. v. QUAID.

No. 4821.

Supreme Court of Oklahoma

September 14, 1915

Syllabus by the Court.

To review the action of the trial court in giving instructions it is necessary that the exceptions to the instructions as given be signed by the trial judge, as provided by section 5795, Compiled Laws of Oklahoma.

It was proper to admit the opinion of a witness that the horse "seemed to be frightened," under the rule which admits opinions from necessity, such as in cases of identity.

Assessor's lists are not admissible, as admissions against interest as to value of property lists for assessment, where the issue as to value is raised in a civil action between the owner and parties other than the state.

Commissioners' Opinion, Division No. 5. Error from County Court, Washington County; James I. Shipman, Judge.

Action by F. F. Quaid against the Bartlesville Interurban Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

George Campbell & Ray, of Bartlesville, for plaintiff in error.

Pennel & Webster, of Bartlesville, for defendant in error.

McKEOWN C.

The defendant in error, F. F. Quaid, as plaintiff below, and for convenience will be called plaintiff, brought this action against the plaintiff in error, Bartlesville Interurban Railway Company (hereinafter called defendant), for damages for negligently killing plaintiff's horse on the 5th day of January, 1912. The issue at the trial of the cause was whether the horse came to his death by reason of the negligence of the motorman in omitting to stop said car, or apply the brakes and lessen the speed of said car, after said horse became frightened and started to run towards defendant's track.

The facts, as they appear from the records, are that on the morning of January 5, 1912, the plaintiff and his son were each riding a horse along a road near the tracks of the defendant company. Both horses became frightened at the car and the horse ridden by the boy ran towards the defendant's tracks, trying to cross the same. The boy was pulling him back, trying to turn him from the tracks; but the boy, discovering his peril, jumped off the horse, and shortly thereafter the defendant's car struck and killed the horse.

There was a conflict of testimony as to how far away the street car was from the place on the track where the horse was struck when the horse started to run towards the track. The testimony of witnesses for the plaintiff was to the effect that it was some 300 feet away. The motorman placed his car about 200 feet away when the horses became frightened, and about 100 to 125 feet away when the horse began to run "sideways." The motorman further testified that the horse backed into the corner of the car.

In the instant case there was ample evidence to go to the jury as to the failure of the motorman, in charge of the car, to do anything to slacken the speed of his car. Under his own testimony he was only traveling 7 miles per hour, and could stop the car in 50 or 60 feet. The car knocked the horse some few feet from the track and ran past the horse some several feet before stopping.

It is urged that the trial court erred in its instructions given to the jury. We are impressed with the exceeding brevity of the instructions, and we are inclined to the opinion that the trial judge evidently believed that:

"When one has no design but to speak plain truth, he may say a great deal in a very narrow compass."

However, we find that the plaintiff in error failed to have the trial judge sign the exception to this instruction, as required by section 5003, Revised Laws of 1910, so we pass the same without further consideration.

The plaintiff in error urges as ground for reversal the failure of the trial court to give instructions requested by it and refused by the trial court. Only two of the requested instructions show an exception to the action of the court in refusing to give the same. The second requested instruction:

"You are instructed that the burden of proof is on the plaintiff to prove every allegation of his petition by a preponderance of the evidence"

--was properly refused because the burden was set out in the court's charge:

"Negligence on the part of the defendant is not presumed, but must be proved by a fair preponderance of the evidence"

--and the plaintiff had abandoned the allegation of failure to fence the right of way as a ground of recovery, and only one issue was being submitted to the jury, and that was whether or not the motorman used ordinary care in the management of the car after he discovered that the horse was going upon the track, and to give the instruction as requested, without explanation, would have been confusing to the jury, for the reason the jury might be of the opinion that the plaintiff had sustained the allegations of the petition as to the motorman's negligence, but had failed as to the fencing of the right of way, and because he had failed to sustain every allegation, he could not recover.

The defendant's requested instruction No. 3:

"You are further instructed that if the jury believe from the evidence that plaintiff's horse, which was killed, became unmanageable and in attempting to suddenly cross in front of the car backed against and came in contact with the car, the fact that the motorman did not stop the car, instead of proceeding slowly, does not warrant a finding that the motorman was negligent"

--is correct in part, and bad in part. The latter portion of the instruction was an invasion of the province of the jury; and not being a correct instruction in its entirety, the refusal of the court to give the same was not error. Sanders v. Cline, 22 Okl. 154, 101...