¶0 1. RAILROADS--Injuries to Persons on Track--Question for Jury. In an action against a railroad company for damages charged to have been sustained by its negligence, the testimony of the plaintiff was that he was injured while standing about eighteen inches from the west rail of the tracks, and was struck by the engine, or some part of it; and the engineer in charge of the train testified that he saw the plaintiff when seventy-five feet from the west rail and in the clear, and the next time he saw him he was ten feet in front of the engine running toward the rails, and he was struck just as he crossed the west rail. Such testimony raises an issue of fact as to whose negligence--that of the plaintiff or that of the company--was the proximate cause of the injury, and this issue was properly submitted to the jury.
2. APPEAL AND ERROR--Harmless Error--Submission of Issues. Where, in such action, testimony is admitted without objection tending to show that the accident might have been avoided by the exercise of proper care by the servant of the defendant, after he discovered the peril of the plaintiff, it is not prejudicial error for the court to submit to the jury the issue raised by such testimony, although this issue was not raised by the pleadings.
3. RAILROADS--Accident to Person on Track--Evidence. In such action a municipal ordinance, limiting the speed of trains within the city limits, was admitted for the purpose of showing the violation of the terms of the ordinance by the defendant, as an element tending to establish actionable negligence. Held, that this evidence was competent although not pleaded.
Error from District Court, Caddo County; Frank M. Bailey, Judge.
Action by Evan C. Martin, a minor, by his next friend, H. L. Martin, against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff; and defendant brings error. Affirmed.
GALBRAITH, C.
¶1 The plaintiff in error appeals from a judgment in the sum of $ 2,500, rendered against it upon the verdict of a jury in favor of the defendant in error, in an action for personal injuries alleged to have been sustained on account of the negligent operation of one of its passenger trains. The charging part of the petition is as follows:
"Second. That on or about the 31st day of July, 1910, the plaintiff, Evan C. Martin, was at the passenger depot of the defendant railway company in the city of Chickasha, Okla., and purchased a ticket from the agent of said company, intending to become a passenger on said company's railroad; that about 1 o'clock at night, plaintiff left said depot and went north about 100 feet along and near the main line of track of said company in a footpath used by a great many persons going to and from said depot, and, while the plaintiff was standing in said footpath along and near said track, at a place about 100 feet north of said passenger depot, an engine with passenger cars attached came along said track from the north, which engine was at that time being operated and controlled by the servants and employees of said defendant company; that said engine and train, although nearing said passenger depot in said city of Chickasha, and in the yards of said defendant railway company, was running at a high rate of speed with no audible noise or signals of any kind; that no bell was rung, no whistle blown, nor any other signal or noise of any kind given or made to warn of the approach of said train; that plaintiff was not aware of the approach of said train until he heard some one remark, 'There comes a train,' when the plaintiff turned to see from what direction the train was coming, and the engine driven and controlled by the servants and employees of defendant company struck the plaintiff and inflicted various and painful injuries, broke the plaintiff's left foot immediately below the ankle joint; and that, as the result of such injuries, plaintiff suffered great physical and mental pain, anguish, and distress to his damage in the sum of $ 20,000.
"Third. Plaintiff alleges that the place where he was standing when such injuries were inflicted upon him by said engine was at said time, and had been for a number of years prior thereto, used by a great many persons and by the general public as a footpath to and from the passenger and freight depots of the defendant railway company in said city of Chickasha, and a great many persons passed along such footpath both day and night, all of which was well known to the defendant; and said defendant, its servants and employees in charge of said engine and train well knew that people in considerable numbers passed along and near said track, both day and night, and it was the duty of said defendant, its servants and employees to keep a lookout for people at such place and to give audible signals and warnings of the approach of trains, and to reduce the speed of the trains to prevent injury to persons who might be along and near said track, but that said defendant and its servants and employees in charge of said engine and train at said time, as hereinbefore alleged, carelessly and negligently failed to give any signals or warning of the approach of said engine and train, as hereinbefore alleged, and failed and neglected to reduce the speed of said train in order to prevent injury to persons who might be in and along said track, and, by reason of such carelessness and negligence of said defendant, its servants and employees, said engine was run against the plaintiff, and plaintiff suffered injuries thereby, as hereinbefore alleged, without fault on the part of the plaintiff."
¶2 The answer was a general denial and the affirmative plea of contributory negligence. A reply was filed denying the affirmative defense.
¶3 The accident occurred in the yards of the plaintiff in error at Chickasha, about 100 feet north of its passenger depot, and a short distance south of its freight depot. The plaintiff's evidence tended to support the allegations of his petition, and showed that the place where the accident occurred was used by the public in crossing from the main part of town to the manufacturing plants located on the east side of the tracks, and that for many years a great many persons had been accustomed to cross the tracks at this point at all hours of the night and day, and that two of plaintiff in error's trains were accustomed to stop at or near this point to discharge and take on passengers. The plaintiff's testimony as to how the accident occurred is as follows:
"Q. How long had you been in Chickasha? A. I run in there from Bradley between six and seven o'clock, and I had been over there between one and two o'clock when I was struck. Q. Where were you when you were injured? A. North of the platform; 120 feet the man said that measured it. Q. What depot? A. Rock Island depot at Chickasha; the old depot. Q. Passenger depot? A. Yes, sir. Q. How long had you been at this place north of the depot before you were injured? A. Three or four minutes. Q. Was any one else close there? A. Yes, sir; Wiseley and Nicewander. Q. Did you know him at that time? A. No, sir; that was the first time I ever seen him. Q. Did you learn his name then? A. No, sir. Q. What position did you have when you were injured? A. Facing kinder to the southeast; facing the depot more than I was east a whole lot. Q. Where was Wiseley and the other man standing? A. Standing back northwest of me. Q. Did you have a grip? A. Yes, sir. Q. What did you do with the grip? A. Set it down by me. Q. When? A. When I walked up there and Charlie and this man were talking. Q. Where did you set the grip in reference to the main line? A. It must have been in three feet of the west rail of the main line. Q. Where were you standing? A. Between the grip and the main line. Q. About how far were you standing from the west rail of the main line? A. A foot and a half or two foot; about the end of the ties. Q. What first attracted your attention to the train? A. I cannot hardly say as to that; but I must have heard a little noise of the train and I looked around, and it must have been in five or six feet of me the first I knew of the train. Q. Was the bell ringing? A. No, sir. Q. Was the whistle blowing? A. No, sir. Q. Was there any noise of any kind of the approach of the train.? A. No, sir; no noise of any description. Q. What was done when you first noticed the train? A. The first thing that I done was to try to get my mind together and get out of the way, and it was so close to me that I did not realize the position I was in until I was knocked down. Q. Where were you hit? A. In this arm, and this shoulder was skinned, and this hip was skinned, and this foot was cut off. Q. What time of night did that occur? A. Between one and two o'clock. Q. Did you know anything about the train coming in at that time? A. No, sir; I did not know a train was coming from the north at all. * * * Q. What were you doing at the depot that night? A. We went there that night and bought a ticket to Minco, and was intending to go and missed the train. Q. That was early in the evening? A. Yes, sir. Q. When did you go back to the depot? A. About one o'clock. Q. What time did the accident happen? A. I heard some one say that it was about 1:30. Q. Shortly after you went back to the depot? A. Yes, sir. Q. Who was with you? A. Wiseley. Q. Where were you and Wiseley going?. A. Intended to go to Minco, and we stepped north of the platform to get out of the crowd, and talked, and we met this man. Q. Were many people about the depot? A. Yes, sir; that's how come us to go up there; to get out of the crowd."
¶4 And on cross-examination he testified in part as follows:
"Q. How far did you walk north before you
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