Chi., R. I. & P. Ry. Co. v. Pitchford

• Decision Date: 28 February 1914
• Docket Number: Case Number: 3044
• Citation: 143 P. 1146,44 Okla. 197,1914 OK 79
• Parties: CHICAGO, R. I. & P. RY. CO. v. PITCHFORD.
• Court: Oklahoma Supreme Court

1914 OK 79

143 P. 1146

44 Okla. 197

CHICAGO, R. I. & P. RY. CO. v. PITCHFORD.

Case Number: 3044

Supreme Court of Oklahoma

Decided: February 28, 1914

Syllabus

¶0 1. TRIAL--Time for Trial--Extension--Filing of Motion. Under section 5834, Comp. Laws 1909 (section 5043, Rev. Laws 1910), a cause stands for trial whenever the issues have been made up for a period of ten days; and the subsequent filing of a motion by plaintiff, directed to defendant's answer, but which is not filed within the time allowed for filing pleadings under the statute, does not revive the operation of the statute.

2. SAME--Postponement--Change in Pleadings. When the issues have once been fully made up by the filing of pleadings, or by failure to file them, the provision of the statute mentioned in the foregoing paragraph has spent its force, and thereafter any change in the issues caused by the filing of new or amended pleadings by leave of the court or consent of the parties does not, by reason of said section, necessarily work a delay of the trial.

3. SAME--Motion to Strike Cause from Docket--Waiver of Exceptions. Where a motion was filed by a defendant to strike a cause from the trial docket on the ground that the issues had not been made up for a period of ten days, as provided in section 5834, Comp. Laws 1909 (section 5043, Rev. Laws 1910), and the motion was overruled and exceptions were saved, but, on the day following the making of said order, the case came regularly on for trial, and the defendant, appearing by its attorneys, announced ready for trial, whereupon a jury was impaneled, and the case proceeded with, without further objection as to the time of trial, held, that defendant, by announcing ready for trial, waived its exceptions to the court's ruling in denying the original motion.

4. PLEADING--Necessity of Reply. An answer to a petition charging negligence, which after a general denial further alleges that "if any injuries were sustained, which is not admitted but expressly denied, said injuries were the result of plaintiff's own negligence and want of care," pleads no new matter, and does not call for a reply.

5. NEGLIGENCE--"Negligence Per Se"--Violation of Public Duty. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, constitutes negligence per se.

6. SAME--What Constitutes--Omission of Prescribed Duty. Where the circumstances of a case are such that the standard of duty is fixed and defined by law, and is the same under all circumstances, the omission of this duty is negligence.

7. CARRIERS -- Injury to Alighting Passenger -- "Negligence Per Se." The sudden starting of a train from which an elderly female passenger was in the act of alighting, the train's movement being directed by a brakeman of said train, who was assisting passengers to alight, and who at the time saw said elderly passenger on the car steps, and whereby and on account of said starting of the train, and the act of the brakeman in jerking said passenger from the steps, said passenger was caused to fall to the station platform, and sustain serious injury, constitutes negligence per se, and the railway company is liable for the injuries sustained, the proximate result of its negligent acts.

8. APPEAL AND ERROR--Verdict--Excessive Recovery. A verdict will not be set aside, in a case of tort, for excessive damages, unless it clearly appear that the jury committed some gross and palpable error, or acted under some improper bias, influence, or prejudice, or totally mistook the rules of law by which the damages are regulated.

ON REHEARING.

9. APPEAL AND ERROR--Trial--Ground for Reversal--Contributory Negligence--Instructions. In an action for damages for personal injuries, where the defense of contributory negligence is interposed, and there is testimony fairly tending to establish such defense, instructions which wholly leave out of view the question of plaintiff's contributory negligence, and under which the jury, if they found certain facts to exist, would be bound to find for the plaintiff although they might also believe the plaintiff by her negligence contributed directly to the accident, are erroneous, and constitute reversible error.

Error from District Court, Le Flore County; Malcolm E. Rosser, Judge.

Action by Jane Pitchford against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. On rehearing, reversed and remanded.

C. O. Blake, H. B. Low, R. J. Roberts, W. H. Moore, and Jas. L. Hale, for plaintiff in error

Jo Johnson, for defendant in error

SHARP, C.

¶1 Plaintiff's original petition was filed October 14, 1910. On November 7th following, defendant filed its motion to require plaintiff to make more definite and certain her petition, which motion was in part sustained on November 29, 1910, and plaintiff was given leave to amend by interlineation, which was done. On December 1st defendant filed its answer, consisting of a general denial, and a separate and additional paragraph charging in general terms contributory negligence. On March 11, 1911, the plaintiff filed her motion to require defendant to make more specific the second paragraph of its said answer, which charged:

"That, if any injuries were sustained, * * * said injuries were the result of plaintiff's own negligence and want of care."

¶2 Thus the pleadings stood when the case was called for trial on April 18th following, at which time plaintiff obtained leave to withdraw her motion. Thereupon defendant obtained leave to file its motion for judgment on the pleadings, on account of the failure of plaintiff to file a reply, which motion was overruled. Defendant then filed its motion to strike the cause from the trial docket on the ground that the issues had not been made up for a period of ten days, as provided in section 5834, Comp. Laws 1909 (section 5043, Rev. Laws 1910), but that instead said action had been pending on an issue of law, namely, plaintiff's motion to require defendant to make its answer more definite and certain. This motion was denied, and defendant excepted. On the day following, the case being called for trial, the following proceedings were had:

"Now on this the 19th day of April, 1911, the same being one of the regular days of the April, 1911, term of the district court of Le Flore county, Okla., there coming on regularly for trial this cause, wherein Mrs. Jane Pitchford is plaintiff and Chicago, Rock Island & Pacific Railway Company is defendant, the plaintiff appearing in person and by her attorney, Jo Johnson, and the defendant appearing by its attorneys, W. H. Moore and James H. Hale, and each announcing ready for trial. Whereupon came a jury of twelve good and lawful men, to wit, J.

¶3 L. Williams, foreman, and eleven others, and, after the plaintiff and defendant had stated their respective cause to the jury, the plaintiff and defendant each introduced evidence as follows:"

¶4 Trial was then regularly proceeded with, without further objections as to the time of trial. As has been seen, over three months elapsed between the time that defendant had filed its answer and the filing of the plaintiff's motion to make defendant's answer more definite and certain. In Rice & Floyd v. Hodge Bros., 26 Kan. 164, construing a somewhat similar statute, it was held by the Supreme Court of Kansas that when the issues had been once made up by the filing of pleadings, or the failure to file them, the case was, under paragraph 315 of the Code of that state, triable at any term commencing more than ten days thereafter, and any subsequent change in the issues, made by filing new or amended pleadings by leave of the court, or consent of the parties, did not render said section of the Code again operative and make further postponement compulsory. See, also, Gapen v. Stephenson, 18 Kan. 140.

¶5 Construing the early statute of this state (section 4205, St. Okla. 1893) in Swope et al. v. Burnham, 6 Okla. 736, 52 P. 924, the territorial Supreme Court, citing Rice & Floyd v. Hodge Bros., supra, said:

"* * * While, under the amended section, the cause is triable whenever the case was, or should have been, under the time fixed for the filing of pleadings, at issue ten days before the first day of the term, or within the ten days, or during the term. Under neither the original nor the amended section, however, is the time when a case is triable determined by the filing of the last pleading, or in any way affected by the filing of amended pleadings. This provision of the statute had spent its force when, under the original section, the case was at issue, under the time fixed for the filing of pleadings, ten days before the first day of the term, or, under the amended section, when ten days had elapsed after this stage of the case. The operation of this provision, under which a party might delay the trial of a cause for ten days from the time it was, or would be, properly at issue, under the Code, was not revived by the filing of amended pleadings."

¶6 The rule there announced is not in conflict with the decisions of this court in City of Ardmore v. Orr, 35 Okla. 305, 129 P. 867, and Conwill v. Eldridge, 35 Okla. 537, 130 P. 912. In the former case the defendant was, over his objection, forced to trial on the same day that his demurrer was overruled, and on which his answer was filed, while in the latter case the objection that the case had been prematurely set for trial was held to have been waived by a failure to object. In Title Guaranty & Trust Co. v. Turnbull, 40 Okla. 294, 137 P. 1178, the motion to continue on the ground that the issues were not made up until that day, and that said cause did not stand for trial until ten days had elapsed therefrom, was overruled, and over the protest of plaintiff in error it was required to proceed to trial, and it was held that, under the state of the record, reversible error had been committed. Here plaintiff's time for filing...