Dickinson v. Cole
| Decision Date | 24 December 1918 |
| Docket Number | 8758. |
| Citation | 177 P. 570,74 Okla. 79,1918 OK 740 |
| Parties | DICKINSON v. COLE. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Article 23, § 6, of the Constitution of Oklahoma, is not merely declaratory of the common law, but requires that the defense of contributory negligence and assumption of risk as to questions of fact in all cases whatsoever shall at all times be left to the jury, and the finding of the jury upon these defenses is conclusive upon the court.
The citizen has no property in a defense, and while rights which have accrued to him under the operation of existing laws, and have thereby become vested, may not be taken away by change of the rule, he cannot be heard to complain if the rule is changed before any rights have accrued to him thereunder.
The running of a train within the limits of a city, in excess of the rate of speed prohibited by ordinance of the city, is negligence per se.
Commissioners' Opinion, Division No. 2.
Appeal from District Court, Oklahoma County; Edward Dewes Oldfield Judge.
Action by Eva Roberts Cole, administratrix of A. W. Roberts deceased, for herself and others, against Jacob M. Dickinson receiver of the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.
C. O. Blake and R. J. Roberts, both of El Reno, W. H. Moore, of McAlester, and John E. Du Mars, of El Reno, for plaintiff in error.
Ledbetter, Stuart & Bell, of Oklahoma City, for defendant in error.
On the morning of December 11, 1915, A. W. Roberts, while attempting to cross the tracks of the Rock Island at the intersection with tracks of the Oklahoma Railway Company in the western part of Oklahoma City, stepped in front of one of the Rock Island east-bound passenger trains, designated as train No. 4, was struck by the engine of the train, and was instantly killed. His widow brought suit against the receiver of the railroad company, recovering judgment in the district court of Oklahoma county, and the receiver brings error.
The uncontradicted evidence shows that the deceased, without anything to obstruct his view of the approaching train for more than a block away, stepped in front of it and was instantly killed. Were it not for article 23, § 6, of the state Constitution, which provides that "the defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury," it would be necessary to hold as a matter of law that the negligence of plaintiff precludes a recovery. The receiver devotes the greater portion of a well-prepared brief to the above-quoted section of the Constitution; his argument being that the provision as construed to warrant the submission of the cause to the jury takes from the receiver a vested right in his defense of contributory negligence, and hence is in violation of the Fourteenth Amendment to the federal Constitution. As said by this court in the case of St. L. & S. F. Ry. Co. v. Long, 41 Okl. 190, 137 P. 1156, Ann. Cas. 1915C, 432, the above-quoted constitutional provision is plain and unambiguous, and plainly makes the question of contributory negligence one for the jury; but in no event would there be any merit in the contention that the constitutional provision takes away a vested right from the receiver, since the facts on which the action is based arose after adoption of the Constitution....
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