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

• Decision Date: 12 March 1912
• Docket Number: Case Number: 1260
• Citation: Chi., R. I. & P. Ry. Co. v. Baroni, 1912 OK 167, 122 P. 926, 32 Okla. 540 (Okla. 1912)
• Parties: CHICAGO, R. I. & P. RY. CO. v. BARONI.
• Court: Oklahoma Supreme Court

1912 OK 167

122 P. 926

32 Okla. 540

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

Case Number: 1260

Supreme Court of Oklahoma

Decided: March 12, 1912

Syllabus

¶0 1.RAILROADS--Accident at Crossing-- Duty to Stop.In an action for injuries received at a railroad crossing, it is not error for the court to refuse to charge the jury, as a matter of law, that it is the duty of the plaintiff to stop before going upon the crossing.

2.SAME--Contributory Negligence--Age of Plaintiff.In an action for injuries received at a railroad crossing, where the plaintiff is an infant nine years old, it is not error for the court, in instructing upon the question of contributory negligence, to permit the jury to take into consideration the age, experience, and maturity of the plaintiff.

3.SAME--Retroactive Operation of Constitution--Unanimous Verdict.Where the cause of action arose before the adoption of the Constitution, but suit was not filed until afterwards, the constitutional provision permitting a verdict to be returned by three-fourths of the jurors applies.

4.NEW TRIAL--Hearing--Absence of Counsel--Reopening--Order.When a motion for new trial is filed at one term, the hearing thereon is continued to the next, a day is set at the next term for hearing motions, notice thereof is given, and counsel are not present when the motion is reached on the regular call of the docket, and when thus reached the court passes on the motion, and afterwards, during the same day, counsel appear and request leave to argue the motion, it is not an abuse of judicial discretion for the court to deny the request.

5.APPEAL AND ERROR--Instructions--Refusal.When the instructions, as given by the court, are correct, and the instructions in the form requested by the losing party are properly refused, the cause will not be reversed for lack of fullness in the instructions as given.

Error from District Court, Pittsburg County; Preslie B. Cole, Judge.

Action by Augustus Baroni, by his next friend, Caton Baroni, against the Chicago, Rock Island & Pacific Railway Company to recover damages on account of personal injuries.Judgment for plaintiff, and defendant brings error.Affirmed.

C. O. Blake, H. B. Low, R. J. Roberts, and Allen Wright, for plaintiff in error.

Wallace Wilkinson, for defendant in error.

AMES, C.

¶1 The error discussed in the brief of the plaintiff in error, hereafter referred to as defendant, is that the trial court erred in overruling the motion for new trial, and under this assignment it is argued that the court erred in refusing an instruction requested by the defendant; in giving an instruction contained in the charge; that the plaintiff was guilty of contributory negligence; that it was error to permit a majority verdict to be returned; and that the court erred in refusing to hear argument of counsel on the motion for new trial.

¶2The plaintiff, a nine year old boy, alleged that he was injured by the defendant at a railroad crossing; that the defendant was negligent in operating its train at an excessive speed, and in failing to give crossing signals.The answer was a general denial and a plea of contributory negligence.The evidence of the plaintiff tended to show that the accident occurred at a crossing, and that the defendant failed to give the crossing signals; while the cross-examination of the plaintiff's witnesses and the evidence of the defendant tended to show that the accident occurred on the private right of way of the defendant, and not at a crossing; that the plaintiff was guilty of contributory negligence, and that the engineer and fireman of the defendant never saw the plaintiff at all; that the accident was not caused by the engine, but happened by reason of the plaintiff falling from or by the side of the train.

¶3The court instructed the jury that if the accident happened on the private right of way the plaintiff was not entitled to recover, fairly presented in his instructions the defendant's theory of the case, and no complaint is made about these instructions.

¶4 It is claimed, however, that the court erred in refusing to give the following instruction:

"The court instructs you that a railroad track is in itself a warning of danger to those about to go upon it, and that it is the duty of those about to cross a railroad track to stop, look, and listen to ascertain if there is a present danger in crossing.And if you find that the plaintiff, Augustus Baroni, failed to stop, look, and listen before attempting to cross said defedant's tracks then said plaintiff would be guilty of such negligence as would bar a recovery, notwithstanding you find from the evidence that the defendant company failed to give signals and to warn plaintiff of the approaching of its trains, and said failure to give said signals contributed to the injury complained of."

¶5We do not think it was error to refuse this instruction, as, in our opinion, it cannot be declared as a matter of law that it is the duty of a person approaching a railroad track at a crossing to stop before going upon the track.It is, of course, his duty to look and listen, and to exercise such care as is commensurate with his surroundings to avoid an accident, and there may be circumstances under which he should stop; but whether or not this is true depends upon the particular facts of the case, and we do not think it can be said, as a matter of law, under the facts in this case, that it was the plaintiff's duty to stop.The rule is stated as follows (3 Elliott on Railroads[2d Ed.] sec. 1167), and is supported by citation of many authorities:

"Ordinary care often requires that the traveler should stop, look, and listen for moving trains, from a place where danger can be discerned and precaution taken to avert it.If, for instance, the noise is so great that an approaching train cannot be heard, and the obstructions are such that it cannot be seen, then the traveler must come to a halt and look and listen.It cannot be said that one who simply looks and listens where he knows, or should know, such acts are fruitless and unavailing exercises that degree of care which the law requires.While it cannot be justly affirmed, as we believe, as matter of law that there is a duty to stop in all cases, yet there are cases where the failure to stop must be deemed such a breach of duty as will defeat a recovery by the plaintiff.There are very many cases holding that the surroundings may be such as to impose upon the traveler the duty of stopping, looking, and listening, and these cases, as we think, assert the true doctrine.Some of the courts, in well-reasoned cases, press the rule further, and hold that the traveler must, in all cases, stop, look and listen.As we have said, we do not think that it can justly be affirmed, as matter of law, that there is a duty to stop in all cases; but we do think that the duty exists in cases where there is an obstruction to sight or hearing, and that where the surroundings are such that but one conclusion can be reasonably drawn, and that conclusion is that it is negligence to proceed without halting, the court should without hesitation direct a verdict, if no halt is made.In the majority of cases, however, the question is one of fact, or a mixed question of law and fact, rather than a pure question of law."

¶6 The other instruction complained of was one given by ...