Choctaw, O. & W. Ry. Co. v. Wilker

• Decision Date: 05 January 1906
• Citation: Choctaw, O. & W. Ry. Co. v. Wilker, 16 Okla. 384, 84 P. 1086, 1906 OK 3 (Okla. 1906)
• Parties: CHOCTAW, O. & W. RY. CO. v. WILKER.
• Court: Oklahoma Supreme Court

84 P. 1086

16 Okla. 384, 1906 OK 3

CHOCTAW, O. & W. RY. CO. v. WILKER.

Supreme Court of Oklahoma

January 5, 1906

Syllabus by the Court.

Where there is conflicting evidence on the question of contributory negligence, it is always a question of fact for the jury.It is only when the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court.

[Ed Note.-For cases in point, see vol. 37, Cent. Dig. Negligence§§ 279-289.]

Where a railroad company by law is charged with a duty to the public it cannot excuse itself from a performance of such duty by an independent contract with other parties; and where it is made by law the duty of a railroad company to keep a highway in reasonably safe condition for travel at the point where the highway intersects such railroad right of way, or where the law makes it the duty of a railroad company, in making alterations by means of which the highway may be obstructed to provide and keep in good order suitable temporary ways to enable travelers to avoid or pass such obstructions, and where a party is injured in consequence of the failure of the railroad company to discharge this duty, such company cannot escape liability by showing that the work was done by other parties under an independent contract.

[Ed. Note.-For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 274-283, 959-967.]

Error from District Court, Logan County; before Justice John H. Burford.

Action by Lewis H. Wilker against the Choctaw, Oklahoma & Western Railway Company.Judgment for plaintiff.Defendant brings error.Affirmed.

This was an action begun in the district court of Logan county, Okl. T., on the 25th day of October, 1902, by the plaintiff against the defendant.In his petition, the plaintiff alleges: That the defendant, the Choctaw, Oklahoma & Western Railroad Company, a corporation, was at the time of said injury, a corporation duly organized and existing under the laws of the territory of Oklahoma, and as such was impowered by its charter to construct a railroad through the county of Logan.That on the 29th day of April, 1902, the said defendant company was engaged in the construction of its railroad over and across section 7, township 16 N., of range 1 E., of the meridian line of the county of Logan, and over and across the highway which runs by section 7, on the west side thereof, and on the said meridian line.That in the construction of said railroad it became necessary for the defendant to place said highway, which had been torn up by the construction of the railroad of the defendant, in good and safe condition, and in proper condition to be used by the public with safety.That the defendant in the construction of the railroad as aforesaid, on the highway on the meridian line by section 7, negligently and carelessly failed to place said highway so torn up by it as aforesaid in a good and safe condition and fit to be traveled over by the public.Then in said petition follows a detailed and accurate description of the defect in the crossing of the highway and the railroad right of way.The petition further alleges that on the said 29th day of April, 1902, the plaintiff, while traveling over said highway with a loaded wagon and using reasonable care and caution to avoid injury, in consequence of the railroad company's negligence in not keeping said crossing in suitable and proper repair and reasonably safe, sustained injury, and was damaged.Then follows a description of the injury, and the petition concludes, "Wherefore the plaintiff demands the sum of $5,000 and the costs of this action," and to this petition the defendant first filed a motion to make the petition more definite and certain, which is by the court overruled.Defendant then filed a demurrer on the grounds (1) that the pleading filed by plaintiff herein is not entitled "petition," as required by section 3695, of the Statutes of 1893; and (2) because the petition does not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant.This demurrer was sustained as to the first ground and overruled as to the second.Plaintiff was then given leave to amend said petition by interlineation, and defendant given 10 days to answer.On the 19th day of February, 1903, the defendant filed its answer, which answer is, first, a denial of every material allegation in plaintiff's petition and prayer for judgment; second, it denies negligence in the construction of the passageway over and across the railway bed at the junction of the highway along the railroad right of way, as set forth in the petition; third, the defendant denies liability for the reason that it is alleged that the injuries were caused by the contributory negligence of the defendant; and, fourth, defendant denies liability because it alleges the fact to be that said passageway was being constructed by the firm of Kahmann & McMurray, contractors, who had the complete charge and control of said construction and the building of the grade of said railway company at the point where said passageway crosses the same.To this answer the plaintiff filed a reply: (1)He denied each and every one of the allegations in the second defense set out; (2)he denied each and every one of the allegations in the third defense set out; and (3)he denied each and every one of the allegations in the fourth defense set out, and prayed judgment.Afterwards, and on March 10, 1904, said cause came on for trial pursuant to assignment theretofore made.A jury was duly and legally impaneled and sworn to try said cause, and evidence heard, the jury instructed by the court as to the law, arguments of counsel made, and the jury returned a verdict against the defendant and in favor of the plaintiff, assessing his damages at the sum of $750, and also returned answers to 50 special interrogatories propounded to them.Motion for new trial was regularly made in due time by defendant, which was by the court overruled, and judgment on verdict pronounced, to all of which the defendant, by its counsel, objected and excepted.The case is brought here for review.

C. B. Stuart, T. R. Beaman, C. O. Blake, M. A. Low, and Dale & Bierer, for plaintiff in error.

Devereux & Hildreth and Cotteral & Hornor, for defendant in error.

IRWIN J.

There are but two questions presented to the court and argued by counsel for a reversal of the case.While some other assignments of error have been made by the plaintiff, a great many objections were waived in the motion for a new trial, and by the express statement of counsel in their brief all the assignments of error, save two, have been waived and abandoned by them, as we find in the very outset of paintiff in error's brief: "There are two questions which we will present in this brief and argument for a reversal of the case, with directions to the court below to dismiss, and we will present them in the following order."The first of these questions is: "We contend that the court below, under the evidence, should have sustained the demurrer interposed at the conclusion of plaintiff's evidence, or should have sustained the motion of plaintiff in error which asked the court to direct a verdict in favor of defendant, because under the evidence in the case it is plainly evident that the plaintiff ought not to recover, because of contributory negligence upon his part."And, second: "That the court below erred in excluding the testimony offered by the defendant below for the purpose of showing that the injury complained of was the result of the negligence of persons for whom the defendant company was not liable, to wit, Kahmann & McMurray, independent contractors, who subcontracted with one James McCaddon for the construction of the vehicle crossing, which plaintiff below claimed was so negligently constructed as to cause the injury complained of."These are the only two propositions which this court has a right to consider.This is true from the fact that they are the only two which are presented by counsel for plaintiff in error in their brief and argument, and under the well-recognized and oft-repeated decisions of this court, where errors are assigned and are raised in the motion for a new trial and are not referred to or discussed in the brief of counsel, they will be treated as waived in this court.This proposition requires no citation of authorities, as it has been so often and repeatedly decided by this court.We will discuss these proposition in their order.

1.Did the evidence disclose such contributory negligence on the part of the plaintiff that the court should have taken the case from the jury and directed a verdict for the defendant in the court below?We take the rule to be well established that, where there is a conflict of evidence on the question of contributory negligence, it is always a question of fact for the jury, and it is only in cases where the facts are such that all reasonable men must reach the same conclusion that it becomes a question of law for the court.In the case of Kane v. Northern Central Railway Company, reported in 128 U.S., at page 91, 9 Sup. Ct., at page 16, 32 L.Ed. 339, the United States Supreme Court say: "In an action by an employé of a railroad company against the company to recover damages for personal injuries received by reason of the negligence of the company, in order to determine whether the employé, by recklessly exposing himself to peril, has failed to exercise the care for his personal safety that might reasonably be expected, and has thus by his own negligence contributed to causing the accident, regard must always be had to the circumstances of the case and the exigencies of his position; and the...