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

• Decision Date: 09 November 1915
• Docket Number: Case Number: 5328
• Citation: 152 P. 1096,52 Okla. 296,1915 OK 907
• Parties: CHICAGO, R. I. & P. RY. CO. v. GILMORE.
• Court: Oklahoma Supreme Court

1915 OK 907

152 P. 1096

52 Okla. 296

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

Case Number: 5328

Supreme Court of Oklahoma

Decided: November 9, 1915

Syllabus

¶0 1. APPEAL AND ERROR--Review--Verdict. A verdict is sustained by sufficient evidence if there is any whatever reasonably tending to support the same.

2. SAME. In ascertaining if a verdict is sustained by sufficient evidence, all the evidence before the trial court, including every reasonable inference therefrom, which tends to support the verdict, is accepted as true.

3. APPEAL AND ERROR--Carriers- -Verdict--Disturbance--Carriage of Passengers--Actions--Evidence. Where there is testimony to the effect that plaintiff, in extremely cold weather, drove, well wrapped, but in an open vehicle, for an hour and a half, to defendant's station to take its train as a passenger, and was very cold upon his arrival thereat; that he was thereupon denied admission to a room in which there was a fire at said station, and, finding the waiting room he was entitled to enter in use as a storage room and without heat, he waited on the outside of the station building for 30 minutes, during which time he suffered much more severely from cold than while en route to the station; that upon his arrival home soon thereafter he was confined to his bed for eight or ten days with pains in his legs, his arms, one shoulder, one foot, both lungs, his voice also being affected, which affliction was followed by somewhat impaired health, and at the trial of this case, about 14 months later, he had two degrees of fever and water in his abdomen, resulting from nephritis and inflammation of the kidneys, which is very often caused by exposure to weather; that his prior health had been good; and that the defendant owed and breached its duty to furnish him a reasonably comfortable waiting room during said 30 minutes; and where said exposure to weather is the only cause disclosed by the evidence of his said sufferings and afflictions--there is evidence reasonably tending to show that his sufferings during said 30 minutes, and also his subsequent suffering and afflictions, were either in whole or in some substantial part proximately caused by defendant's said breach of duty, and the difficulty of determining to what extent such breach of duty contributed to his injuries does not deprive him of the right to have the question submitted to the jury.

(a) Only when the court can say that an inference of proximate cause by a jury is unwarranted by the evidence will the verdict thereon be disturbed.

4. APPEAL AND ERROR--Evidence--Opinion Evidence--Expert Testimony. It may be, and often is, forensically, but never legally, necessary, in determining questions of science, to produce the opinion testimony of expert witnesses to aid the jury in sound reasoning, and thus secure a correct inference and finding from proven basic facts; and, although a court may not have actual scientific knowledge sufficient to enable it in such cases to affirm that a verdict predicated upon an inference and finding from such basic facts is correct, it will not disturb such verdict, unless convinced that the same is unwarranted.

(a) Expert opinion testimony is not binding upon, and is only advisory of, the jury, and therefore, strictly speaking, is never legally necessary to sustain a verdict involving a determination of such question.

Error from District Court, Blaine County; J. R. Tolbert, Judge.

Action by J. G. Gilmore against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

The plaintiff in error will be designated as defendant, and defendant in error as plaintiff, in accord with their respective titles in the trial court.

Plaintiff, a negro preacher, 49 years old, "well wrapped," and his face protected, on November 27, 1911, a very cold and stormy day, with a strong wind from the northwest and some snow and sleet falling, went, facing the wind at times and with side to it at other times, from a settlement called "Jacks," in Blaine county, eight miles, to defendant's station at Greenfield, in the same county, to take, as he did, defendant's train thence to Watonga, in said county. The plaintiff testified that:

"It was a fierce day, snowy day, stormy day, sleeting and snowing, and windy, and extremely cold."

The plaintiff testified as to his suffering from cold en route and upon his arrival at the station as follows:

"Well, I was cold, certainly. I was indeed cold. I presume we was about an hour and half making that distance. Come with our faces to the wind in many instances coming to the depot, and had it sideways coming, but I didn't feel as cold riding as I did when I got out of the vehicle. Then it seems I got cold sure enough. I was well wrapped and had wraps on me and around me. My face was well secured, but when I got out I got cold right. * * * Well, I was stiff and numb, and couldn't really use myself actively as I did before being out there. I was just numb and stiff, and my feet was chilled. The man who was driving his hands got numb, and he couldn't hold the lines, and I drove until my hands give out, and the horses just brought us in. * * * On the depot after I got out in the wind I got colder, because the wind got to me better. I got completely stiff. After the wind got to sifting through me, and the snow was falling tremendously, and the wind was blowing, too. We was just stiff."

On cross-examination the plaintiff was asked and answered questions as follows:

"Q. In coming in from the country your hands became thoroughly numb and stiff in driving? A. Yes, sir. Q. Were your feet cold? A. Yes, sir. Q. You were pretty cold all over when you got to the depot? A. Not so fearfully cold; we were cold."

Upon plaintiff's arrival at the Greenfield station about a half an hour before train time he found the negro waiting room without heat and without any equipment therefor, except a stove with a fire in it in the adjoining white waiting room, from which the negro section was separated by a partition wall, in the upper part of which there was a steel latticed opening or wire screen with one-inch meshes about three and one-half by four and one- half feet in size. This negro waiting room was about four or five feet wide and about six feet long, and was at this time in use as a storage room for Irish potatoes in sacks. The plaintiff further testified:

"The gentleman who hauled me there, we got off and made entrance in the colored department, and I found it obstructed by something. Couldn't get the door open very far, and I looked inside, and saw quite a number of sacks of Irish potatoes, I discovered it to be, and it was so very cold I knocked on the window of the agent's office and asked for a ticket to Watonga. I suppose it was about train time, and after I purchased the ticket I inquired as to the time the train would come, and he said to me the train was an hour late possibly, and maybe more. I says, 'I am about to freeze, and it's very cold, and you haven't got any fire in here;' and he says, 'I am not responsible for no fire not being in that room; I am only the agent here to take care of what the railroad company put here.' I says, 'Then can I come into the other room and get warm?' And he says, 'No; that is against the law,' which I knew it was. I says, 'What must I do? If I stay here I'll freeze. I can't get in the room.' I says, 'There ought to be something done about this.' He says, 'Well, sue the railroad company; don't sue me. I am only a laborer here, and I only take charge of what they place here. There is a stove in the other room, and I keep fire in there, and not in this room.' * * * I walked around in the front part of the depot thinking what was best for me to do, and this Stewart man saw us over there, and he says, 'What is the matter, Uncle Gilmore?' I says, 'We are about to freeze and can't get in to the fire.' He says, 'You come over to Mr. Bartholomew's store.' I says, 'I don't know if we can make it there, we are so cold and stiff.' However, we went over there."

Here the plaintiff testified that while at the depot he stayed "outside the door on that little platform; had no other place to go;" and, further, as to the condition of the negro waiting room:

"* * * And the entire front was obstructed with sacks of Irish potatoes. * * * The wall that divides the colored from the whites--the sacks were leaned up against those walls, and the entrance to the door of the colored department and in the corner as many sacks as could be put in there, coming on up against the door. The hinges of the door was not obstructed completely. You could just get it possibly half foot open. I shoved that much open, and I got the man to move a sack. * * * After I came out of the door and went around in front of the depot I could see through the window in the white department. * * *"

The evidence reasonably tends to prove that, able to produce bodily heat, as he was under the excitation of the conditions, plaintiff, described and wrapped as he was for its retention while en route to the defendant's station at Greenfield, upon his arrival at the station had not the capacity to continue to produce and retain as much bodily heat, and he suffered much more from cold than he had suffered en route--was in greater need of the aid of external heat.

The evidence reasonably tends to prove that the plaintiff, after waiting in the doorway of the negro waiting room and on the south side of the depot for some 30 minutes, went to a fire in Mr. Bartholomew's store, about 150 or 175 yards away, where, with the exception of one trip to the station to inquire about the train, he remained until the train came in, an hour or more late, when he took the train for his home in Watonga. Mr. Bartholomew testified that plaintiff complained of being and "seemed to be very cold"; and another witness said he "shivered around the stove" in the store and complained of being cold....