Chi., R. I. & P. R. Co. v. Austin

• Citation: 1916 OK 832,163 P. 517,63 Okla. 169
• Decision Date: 10 October 1916
• Docket Number: Case Number: 7470
• Court: Supreme Court of Oklahoma
• Parties: CHICAGO, R. I. & P. R. CO. et al. v. AUSTIN.

1916 OK 832

163 P. 517

63 Okla. 169

CHICAGO, R. I. & P. R. CO. et al. v. AUSTIN.

Case Number: 7470

Supreme Court of Oklahoma

Decided: October 10, 1916

Syllabus

¶0 1. Appearance--Jurisdiction--District Court --Waiver.

Where pending appeal to the Supreme Court from a judgment rendered in the superior court of G. county the records, files, and papers of a cause were transferred to the district court of that county pursuant to chapter 77, Sess. Laws 1913, and upon reversal of said judgment mandate from the Supreme Court was lodged in the district court, and defendants thereafter appeared generally in said court in said cause, they thereby waived the right to object to the jurisdiction of said court, even though said chapter 77 was afterwards held unconstitutional.

2. Same.

Where defendants appeared in a cause and submitted to the court nonjurisdictional questions which could not be submitted and determined on a special appearance, they recognized the general jurisdiction of the court and waived all irregularities in the manner by which that court obtained jurisdiction of their persons.

3. Courts--Transfer of Causes--Validity--Statute.

Chapter 20, Sess. Laws 1915, validating all proceedings had, orders made, judgments rendered, or decrees entered by the district courts or the judges thereof in causes transferred to said district courts pursuant to chapter 77, Sess. Laws 1913, had the effect of rendering valid the transfer of the records, files, and papers of a cause of which the district court had concurrent jurisdiction from the superior court to the district court of a county and the subsequent proceedings had therein.

4. Statutes--Curative Acts--Legislative Power.

Curative acts may apply to pending proceedings, and, while the Legislature cannot annul or set aside the judgment of a court, it may remove a defect on which the judgment proceeded.

5. Appeal and Error--Parties-- Defendants in Error--Appellate Jurisdiction--New Trial.

Plaintiff brought suit against defendant railway company and members of its train crew for damages for personal injuries alleged to have been received because of negligence in the operation of one of defendant company's trains by the individual defendants composing the train crew. Judgment was rendered for plaintiff and against defendant company and in favor of the individual defendants. The defendant railway company appealed to the Supreme Court, naming its co-defendants as defendants in error. The judgment was reversed, and the cause remanded, with directions to the trial court to grant plaintiff a new trial as to all defendants. After remand plaintiff dismissed as to all defendants except the railway company and the conductor. A second trial resulted in judgment for plaintiff against both defendants, who join in the present appeal and plead the judgment at the first trial in favor of the conductor as a bar to plaintiff's right to recovery. Held: (1) On the former appeal the conductor and other members of the train crew were proper and necessary parties thereto, and were properly joined as defendants in error; (2) that the judgment rendered at the first trial was a joint judgment and the Supreme Court obtained jurisdiction to reverse, vacate, or modify the same or direct that such be done by the trial court as to all parties; (3) upon the reversal of said judgment plaintiff was entitled to a new trial as against all the defendants in the action.

6. Appeal and Error--Subsequent Appeal-- Law of Case.

Where on a former appeal the rights of the parties under the issues made by the pleadings and the facts disclosed by the record have been determined, such determination becomes the law of the case, and on a second appeal involving the same questions the Supreme Court will be controlled by the conclusions announced in the former decision.

7. Railroads--Persons on Track--Care Required.

Where it appeared from the evidence that plaintiff, who was injured, was traveling across the yards and tracks of a railway company along a well-defined pathway which had been constantly used by the public in large numbers for eight or ten years, and two members of a train crew engaged in switching in the yards across which plaintiff was passing saw him and knew of his presence, the defendant company and its employes in charge of its engine and cars were bound to use reasonable care to avoid injury to him.

8. Same--Injury on Track-- Negligence.

Where, with knowledge of plaintiff's presence upon its premises, defendant kicked four cars upon a switch across which plaintiff was about to pass, without any warning or signal notifying him of the approach of said train of cars, and regardless of the fact that such acts might result in plaintiff's death or serious injury, defendant was guilty of gross negligence.

9. Same--Warning Against Trespassers--Effect.

Nor does the fact that the railway company had placed signs along its right of way warning the public against trespassing thereon absolve it from the duty imposed by the custom of the public which had ripened into a license where it appears that the custom had continued unabated after the placing of the signs.

10. Appeal and Error--Harmless Error--Admission of Evidence.

A case will not be reversed for error in the admission of evidence unless it appears upon an examination of the entire record that such error has resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.

Error from District Court, Grady County; T. P. Clay, Assigned Judge.

Action by J. E. Austin against the Chicago, Rock Island & Pacific Railway Company and Ed Connors and others. Judgment for plaintiff, and the named defendants bring error. Affirmed.

See, also, 43 Okla. 698, 144 P. 1069.

C. O. Blake, R. J. Roberts, W. H. Moore, J. G. Gamble, Barefoot & Carmichael, and Harris, Nowlin & Singleton, for plaintiffs in error.

Bond, Melton & Melton and McKnight & Heskett, for defendant in error.

HARDY, J.

¶1 J. E. Austin commenced this action in the superior court of Grady county against the Chicago, Rock Island & Pacific Railway Company, Ed Connors, conductor, J. S. Carmack, engineer, and Ray McCormick and Charles Best, brakemen, claiming damages for personal injuries alleged to have been received by him on account of the negligent operation of one of the defendant railway company's trains. At the first trial the court sustained a demurrer to the evidence as to the defendants Carmack, McCormick, and Best, and overruled the same as to the defendants railway company and Connors. Thereupon the trial proceeded and resulted in a verdict and judgment in favor of plaintiff and against defendant railway company and in favor of defendant Connors. The railway company in due time filed petition in error with case-made attached, joining its codefendants as defendants in error; and on March 3, 1914, this court rendered an opinion reversing said cause. C., R. I. & P. R. Co. v. Austin, 43 Okla. 698, 144 P. 1069. Petition for rehearing was overruled, and upon motion of defendant in error, Austin, the cause was remanded to the trial court, with directions to set aside the judgment and grant plaintiff a new trial as to all of the defendants therein. On March 22, 1913, the Legislature enacted chapter 77, Sess. Laws of 1913, p. 119, by the terms of which it was sought to abolish certain superior courts, including the superior court of Grady county. Said act provided for the transfer of pending eases of which the district court had concurrent jurisdiction to the district courts of the county in which such superior courts were located, and under this provision the records, files, and papers in this case were transferred to the district court of Grady county, and when the mandate of this court was issued it was transmitted to and lodged in the district court of Grady county. After remand of the case it was dismissed as to defendants Carmack, McCormick, and Best, leaving the action pending against the railway company and Connors. The second trial resulted in a verdict and judgment against both defendants, who join in the present appeal.

¶2 It is insisted that chapter 77, Sess. Laws 1913, supra, was invalid, that the superior court of Grady county was not abolished thereby, and that this case was wrongfully transferred to the district court, which latter court had no jurisdiction of this action.

¶3 In Hatfield v. Garnett, 45 Okla. 438, 146 P. 24, it was held that said chapter 77 was invalid for the reasons therein stated. On September 12, 1913, prior to the reversal of this case on the first appeal, the defendant railway company filed in the district court of Grady county a petition for new trial in which it alleged that the superior court was abolished, and that the proceeding was begun in the district court as the successor thereto. To this petition defendants Connors, McCormick, and Carmack filed an answer, admitting the allegations thereof, and consenting that judgment might be issued as prayed for. On December 7, 1914, after mandate had been filed and recorded, plaintiff, Austin, filed a motion in the district court to set aside the judgment rendered in the superior court as to all defendants, which motion was heard on December 23d, at which time defendants appeared and contested the same and reserved exceptions to the order of the court. On January 15, 1915, plaintiff moved to dismiss without prejudice as to defendants Carmack, McCormick, and Best, which motion was sustained and exceptions reserved by defendants railway company and Connors. On the same day said defendants filed motion to remand to the superior court, which motions were overruled, and thereupon filed pleas to the jurisdiction, which were denied, and then by leave of court withdrew their answers and interposed demurrers to the petition on both jurisdictional and nonjurisdictional grounds. These demurrers were overruled, and defendants thereafter filed motion for judgment on the pleadings based...