* Chi., R. I. & P. R. Co. v. Owens

• Decision Date: 20 January 1920
• Docket Number: Case Number: 8889
• Citation: 186 P. 1092,78 Okla. 50,1920 OK 31
• Parties: * CHICAGO, R. I. & P. R. CO. v. OWENS, Admx.
• Court: Oklahoma Supreme Court

1920 OK 31

186 P. 1092

78 Okla. 50

* CHICAGO, R. I. & P. R. CO. v. OWENS, Admx.

Case Number: 8889

Supreme Court of Oklahoma

Decided: January 20, 1920

Syllabus

¶0 1. Master and Servant--Action for Death of Brakeman--Evidence--Res Gestae.

The question of admissibility of statements as part of the res gestae should in a great measure be left to the determination of the trial court. Held, under the facts in the above-entitled case, the evidence was admissible.

2. Same--Evidence of Poverty of Plaintiff--Harmless Error.

The court permitted plaintiff to testify that she was working in a restaurant at $ 7 per week and that her children were in an orphanage. There is no complaint made that the verdict is excessive. Held, although error from an examination of the record the rights of the defendant were not prejudiced thereby.

3. Same--Elements of Damages--Employers' Liability Act.

Under the federal Employers' Liability Act, the principal representative of the deceased employe on the part of a designated beneficiary, in a proper case, may recover such damages as will compensate them for their pecuniary loss, and also such damages as will be reasonably compensatory for the conscious pain and suffering of deceased between the time of the injury and his death.

4. Same--Recovery for Suffering of Deceased--Petition--Sufficiency.

The petition in the above-entitled case failed to allege that the deceased ever recovered consciousness after receiving the injury, and failed to state how long he survived after receiving said injury, and failed to state that the deceased suffered intense pain; therefore did not state sufficient allegations to predicate a cause of action to recover for conscious pain and suffering between the time of the injury and the time of the death of the deceased.

5. Same--Insufficiency of Petition--Method of Attack.

Allegations in a petition of the representatives of a railroad employe to recover for death of the employe caused by the railway company's negligence, that the company was incorporated in Iowa and Illinois and operated its railway in and through the state of Oklahoma, and that, when injured, deceased was in the line of his duty, and that the injury occurred in Oklahoma, by reason of the negligence of the defendant in operating its train, imperfectly stated a cause of action under the federal Employers' Liability Act, and if the company was in doubt as to whether the action was brought under the state or federal statute, they should have filed a motion to make the petition more definite and certain, or to require the plaintiff to elect.

6. Same--Departure in Reply--Waiver of Defect.

When the allegations of the reply constituted a departure, the same could not be taken advantage of by objecting to the introduction of any evidence under the pleadings, and that defendant waived the defect by failing to move to strike the reply and going to trial on the issues thus raised.

7. Trial -- Instructions -- Sufficiency as a Whole.

All of the instructions should be considered together, and if, when considered as a whole, they state the law correctly and without conflict, it is sufficient, although one or more, standing alone, might be incomplete.

8. Master and Servant--Damages for Death of Brakeman--Sufficiency of Evidence.

The evidence examined, and held, that it was not error for the court to overrule the motion of the defendant to instruct the jury to return a verdict for defendant, and there was sufficient evidence to support the verdict of the jury.

9. Appeal and Error--Modification of Judgment--Damages for Death of Brakeman.

Where a verdict in a damage suit for the death of an employe of a railroad company under the federal Employers' Liability Act itemizes the damages at $ 10,000 for pecuniary loss and $ 5,000 for conscious pain and suffering, and the petition fails to state sufficient allegations to state a cause of action for conscious pain and suffering, but the item for pecuniary loss is proper, the court being able to separate the legal from the illegal amount of the verdict, the judgment will be modified and affirmed for the amount of the verdict that was proper.

Appealed to the Supreme Court of the United States.

Error from District Court, Seminole County; Tom D. McKeown, Judge.

Action by Mrs. Minnie Owens, administratrix, for the death of her husband, E. E. Owens, against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Modified and affirmed.

W. H. Moore, C. O. Blake, R. J. Roberts, J. E. DuMars, and John W. Wilmott, for plaintiff in error.

W. N. Maben and Stuart, Cruce & Cruce, for defendant in error.

McNEILL J.

¶1 This action was instituted in the district court of Seminole county by Mrs. Minnie Owens, administratrix of the estate of E. E. Owens, against the Chicago, Rock Island & Pacific Railway Company, a corporation, to recover damages for the death of her husband, E. E. Owens, alleged to have been killed in an accident while on duty in the employ of the defendant as a brakeman on its line of railway on the 24th day of October, 1913.

¶2 The material allegations of the petition are that E. E. Owens was survived by the plaintiff, his widow, and their three children; that she was the duly appointed administratrix of said estate; that the defendant was a corporation organized under the laws of Iowa and Illinois, and operated its railroad into and through the state of Oklahoma. That on the 24th day of October, 1913, the deceased was a brakeman and extra conductor on said railroad, and was called and did go out on a run to take the place of an absent brakeman on train No. 97, which train proceeded on its line of railroad from the city of Shawnee in a westerly direction, to what is known as "Choctaw Hill", where there is a steep grade some two or three miles west of the town of Choctaw; that the train was heavily loaded, the exact tonnage not being known to said plaintiff; that there was not sufficient sand in said engine to prevent the engine from slipping, and the company was negligent in failing to supply said engine with sufficient sand, and when said engine attempted to go up said hill the engine could not pull the train and allowed the engine to slip and the cars to go back against each other with great force and violence. That when the deceased finished his supper in the caboose, and while the train was moving up Choctaw Hill, deceased took his lantern and went on the platform of the caboose and attempted to mount a box car in front of the caboose, and while attempting to pass from the caboose to the box car, on account of the defendant failing to supply the engine with sufficient sand and on account of the negligence of the engineer in allowing said engine to stop and slip back, all of which caused the cars to come together with great force and violence, and more than the ordinary force and violence of the cars coming together when an engine has sufficient sand, and on account of the cars jarring together with extraordinary force and violence, the deceased was knocked from the platform of the caboose and over the side of the trestle to the ground below, a distance of about 40 feet, inflicting upon the deceased severe mortal wounds, from which he died soon thereafter--and plaintiff prays for damages.

¶3 It was further alleged that the company knew of the condition surrounding the running of the train; that deceased had no knowledge of the negligence of the defendants, and that said negligence was the proximate cause of the accident and injury. For which plaintiff prays for damages for the wrongful death of deceased in the sum of $ 30,000.

¶4 During the trial the plaintiff, over the objection of the defendant, amended her petition, which amendment disclosed that the case was prosecuted under the federal Employers' Liability Act, and attempted to state a cause of action to recover for suffering and conscious pain of the deceased. The defendant filed an amended answer, setting up numerous defenses, to wit, that of contributory negligence, assumption of risk, that defendant was engaged in interstate commerce, and its liability was controlled by the federal Employers' Liability Act. The plaintiff replied by general denial.

¶5 From a judgment in favor of the plaintiff in the sum of $ 10,000 for pecuniary loss, and $ 5,000 for conscious pain and suffering, the defendant has appealed, and for reversal of said judgment relies upon numerous specifications of error.

¶6 The first specification of error relied upon is that the court erred in admitting certain testimony over the objection of the defendant. This assignment of error is first directed to the evidence of Dr. C. W. Townsend, who was the physician summoned to minister to the deceased, and who saw the deceased about an hour after the injury occurred. The physician testified that the deceased was in a semiconscious condition and in great pain; that he aroused deceased from that condition and inquired as to how he fell, and the deceased remarked, "The train jerked and I lost my grip"; that during the time he ministered to deceased thereafter, deceased would arouse from a semiconscious condition and answer some question fairly intelligently. It is the contention of the defendant that this statement was not a part of the res gestae and not properly admitted. The evidence upon whether this statement was deceased's first utterance after regaining consciousness was conflicting; the evidence of the doctor and the brakeman supporting the theory that the deceased was unconscious and this was his first statement, while the testimony of the conductor of the train contradicted that of the brakeman. The conductor testified that on two occasions prior to the time the doctor interviewed the deceased, the deceased was apparently conscious. It thus became the duty of the court to pass upon this conflicting evidence and say whether or not the statement above referred to was the first statement of the...