Chicago, R.I. & P. Ry. Co. v. Brooks
| Decision Date | 01 April 1919 |
| Docket Number | 8986. |
| Citation | 179 P. 924,72 Okla. 208,1919 OK 102 |
| Parties | CHICAGO, R. I. & P. RY. CO. v. BROOKS et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
One who goes upon a train to render necessary assistance to a passenger, in conformity with a practice approved or acquiesced in by the carrier, has a right to render the needed assistance and to leave the train; and the carrier, in permitting him to enter with knowledge of his purpose, is presumed to agree that he may execute it, and is bound to hold the train a reasonable time therefor. If he is injured by reason of the sudden starting of the train or the omission to give the customary signals, the carrier will be liable.
Evidence in this case examined, and held sufficient to go to the jury on the question of whether the defendant railway company, through its agents, had notice that the deceased entered the train for the purpose of seating his wife and whether it was negligent in suddenly starting the train without giving him a reasonable time to procure a seat for his wife and to get off in safety.
In an action by plaintiff against defendant railway company and two members of its train crew for the negligent killing of her husband in the operation of one of defendant company's trains, a judgment was rendered for the plaintiff and against the defendant railway company, and in favor of the individual defendants. The defendant railway company appealed to the Supreme Court, naming its codefendants defendants in error where the cause was reversed and remanded. On the second trial the trial court sustained defendant's objection to the introduction of any evidence against the railway company's codefendants, said trial resulting in a judgment against the defendant railway company. Held: (1) That on the former appeal the two 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; (4) that the first judgment in favor of the individual defendants was not a bar to a recovery against the railroad company as to the alleged negligence of the individual defendants.
Certain requested instructions examined, and held that, in so far as they state correct propositions of law, as applicable to the instant case, they are covered in the general charge.
The giving of a certain instruction set out in the opinion held not to constitute prejudicial error.
A case will not be reversed for error in the admission or rejection of evidence, unless it appears from 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.
Additional Syllabus by Editorial Staff.
In an action against a carrier and two of its trainmen for negligent killing of plaintiff's husband, any error in admission of testimony of plaintiff's witness that shortly after arrival of train he heard one of trainmen state that he had pushed some one off was not prejudicial where instructions did not submit that issue, and the court thereafter sustained an objection to evidence on that point.
Error from District Court, Oklahoma County; John W. Hayson, Judge.
Action by Mrs. Florence M. Brooks against the Chicago, Rock Island & Pacific Railway Company and P. B. Howard and George Young. Verdict and judgment against defendant Railway Company, and it brings error. Affirmed.
W. H. Moore, of McAlester, and C. O. Blake, R. J. Roberts, and J. E. Du Mars, all of El Reno, for plaintiff in error.
Carlisle & Edwards, of Oklahoma City, for defendants in error.
This is an action instituted by Mrs. Florence M. Brooks against the Chicago, Rock Island & Pacific Railway Company, R. P. Howard, and George Young to recover damages for the alleged negligent killing of plaintiff's husband, Roy Brooks, at Elk City, Okl., on the 24th day of August, 1911. The cause was submitted to a jury, which returned a verdict for the plaintiff and against the railway company, in the sum of $7,000, from which the railroad company has appealed, assigning numerous errors.
This is the second time this case has been appealed to this court; the opinion on the first appeal being found in 156 P. 362. The judgment in the instant case was affirmed on the 23d day of July, 1918, in an opinion by Commissioner Pope, but a rehearing was granted, and the case is now before us for full consideration.
At the outset we will outline the case and more particularly refer to the evidence in the discussion of the assignments of error to the extent that it appears proper in order to elucidate the particular questions presented and our opinion thereon.
The evidence in the case discloses that the plaintiff, accompanied by her husband, Roy Brooks, and his brother, Howard Brooks, went to the depot of the defendant railway company at Elk City early in the morning of August 24, 1911, to meet train No. 44, an east-bound passenger train, which was due at said station at 2:25 a. m., but was late on this particular morning, and arrived about 2:31 a. m. The plaintiff, with her two small children, one an infant, was going on said train to Oklahoma City, and, being incumbered with the children and several pieces of hand baggage, her husband, Roy Brooks, and Howard Brooks went upon the train with her for the purpose of assisting her onto the train and finding a seat for her. After entering the train and before Roy Brooks and Howard Brooks had an opportunity to seat Mrs. Brooks and the children, the train started, and the two men thereupon immediately turned and hurriedly left the car, Howard Brooks preceding Roy Brooks. Howard Brooks jumped from the train and was thrown to the ground. He got up and began looking for his brother, when he saw the train stop just east of the depot. Thinking that the train stopped to permit his brother to alight, he walked toward the train, and found the deceased so badly crushed that death must have instantly taken place. The train had been stopped for the purpose of permitting a Mr. Hickman to alight. He said also entered the train to get a seat for his wife.
The railway company insists that there is no liability in this case, for the reason that it was incumbent upon the plaintiff to bring home to the defendant company notice of the fact that Roy Brooks, deceased, entered the train for the purpose of assisting his wife, and not for the purpose of becoming a passenger. This was one of the allegations in her petition. There can be little controversy as to the law on this question. In Midland Valley Ry. Co. v. Bailey, 34 Okl. 193, 124 P. 987, this court, in an opinion by Commissioner Ames, discussed the question of the duty of a railroad company to persons who accompany their relatives or friends to a train for the purpose of assisting such persons in entering or leaving the train, and there alluded to the fact that the authorities are in substantial harmony, and quoted with approval from Hutchinson on Carriers (3d Ed.) § 991, the rule universally recognized, which is as follows:
A comprehensive list of authorities is cited in the opinion in support of this doctrine.
Counsel for the railway company assert that the case at bar is governed by the Bailey Case, supra, and although we are in thorough accord with the law as announced therein, we think that the facts of that case are clearly distinguishable from those in the case now under consideration. From an examination of the Bailey Case it appears that a daughter of Mrs. Bailey, the plaintiff, was sick, and was taken to the depot of the Midland Valley Railway Company, at Pawhuska, Okl., accompanied by her physician, Dr. Speck, the plaintiff, and one or two other persons. Dr. Speck informed the conductor of the train that he had a sick patient whom he desired to put on the train, and asked permission to take her in at the rear door of the last car and for sufficient time for that purpose. The doctor was going with his patient to her destination, and did not advise the conductor that he, the plaintiff, or any one else...
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