Dickinson v. Granbery

• Decision Date: 27 August 1918
• Docket Number: 9150.
• Citation: 174 P. 776,71 Okla. 9,1918 OK 494
• Parties: DICKINSON v. GRANBERY.
• Court: Oklahoma Supreme Court

174 P. 776

71 Okla. 9, 1918 OK 494

DICKINSON v. GRANBERY.

No. 9150.

Supreme Court of Oklahoma

August 27, 1918

Syllabus by the Court.

There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent and what shall constitute ordinary care under any and all circumstances. The terms "ordinary care," "reasonable prudence," and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case may under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where 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 courts.

[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Ordinary Care; Reasonable Prudence.]

In an action for the death of a railroad section foreman, who was killed while attempting to remove his motor car from the track to prevent its being run into by a passenger train where the evidence shows that at the time and place of injury there was a very dense and unprecedented fog, and that the engineer and crew of the passenger train failed to ring the bell, sound the whistle, or burn a headlight in approaching and passing through the fog at the place of the accident, and was running its train at a speed of from 40 to 45 miles per hour, held the evidence sufficient to go to the jury on the question of the primary negligence of the railroad company.

The admission of testimony that the engineer and crew of the passenger train failed to blow the whistle or ring the bell at a highway crossing about 200 yards west of the place of accident was properly admitted as a circumstance bearing on the question of defendant's negligence.

Where a railroad company is charged with failing to use ordinary care in several particulars, it will not be permitted to split up the charges into items mentioned in the petition as constituent elements, and ask for a ruling as to each. The court was authorized in leaving the general question of defendant's negligence to the jury where the evidence, viewed as a whole, warranted a finding of negligence.

Where negligence on the part of the master is shown, whether the intervening negligence of the person injured is a proximate cause of the injury is a mixed question of law and fact, and is therefore primarily one for the jury to determine under proper instructions. The court will not undertake to settle it in any case where it involves the weighing of conflicting evidence, the balancing of probabilities, and the drawing of inferences.

Under the federal Employers' Liability Act (35 Stat. 65) contributory negligence on the part of the employé injured is not a bar to a recovery, but it is the duty of the jury to diminish the damages in proportion to the amount of the negligence attributable to such employé.

Under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]), the servant assumes all the ordinary risks of his employment which are known to him, or which could have been known by the exercise of ordinary care to a person of reasonable prudence and diligence in like circumstances. Risks not naturally incident to the occupation, but which arise from the negligence of the master, are not assumed by the servant until he becomes aware of such negligence and of the risk arising therefrom, unless the negligence and risk are so apparent and obvious that an ordinarily careful person would observe the one and appreciate the other. Whether the risk is an ordinary risk known to the servant, or with knowledge of which he is chargeable, is a question of fact to be submitted to the jury.

It is not negligence per se for a foreman of a section crew to voluntarily risk his own safety or his life in attempting to protect the crew and passengers of an approaching train from danger. The law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under circumstances constituting rashness in the judgment of prudent persons.

Error from District Court, Texas County; T. P. Clay, Judge.

Action by Lula May Granbery, administratrix of estate of Watt O. Granbery, against J. M. Dickinson, receiver of the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

R. J. Roberts, C. O. Blake, W. H. Moore, and J. E. Dumars, all of El Reno, and John L. Gleason, of Guymon, for plaintiff in error.

L. C. Barrett, of Amarillo, Tex., J. S. Harris, of Guymon, J. N. Browning, of Amarillo, Tex., and Ledbetter, Stuart & Bell, of Oklahoma City, for defendant in error.

RAINEY J.

This was an action against the receiver of the Chicago, Rock Island & Pacific Railway Company by Lula May Granbery, the personal representative of Watt O. Granbery, an employé of the company, to recover damages for the death of the said Granbery resulting from a collision of a locomotive engine drawing a passenger train between Dalhart, Tex., and Liberal, Kan., and a motorcar on which the deceased and a section crew, in his charge as foreman, were riding immediately preceding the accident. The collision occurred in Oklahoma, about 3 1/2 miles west of the town of Goodwell, about 200 yards east of the intersection of a public highway and the railroad company's track. The company was engaged in interstate commerce, and the deceased was a section foreman for said company on the section of the road where he was injured, and at the time of his injury was engaged in his duties as such.

It is agreed by the plaintiff and defendant that the case is therefore governed by the federal Employers' Liability Act. Pederson v. Delaware, Lackawanna & Western R. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153.

The cause was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $8,750, from which judgment the defendant has appealed to this court.

The circumstances of the collision, as shown by the evidence, were substantially as follows: The defendant railroad company's track from Texhoma, Okl., to Liberal, Kan., was a long straight piece of track, and the schedule time of the passenger train was about 35 miles per hour, including stops. When running on schedule time the train that struck the motorcar was due in Goodwell, Okl., at 8:30 o'clock a. m., but on the morning of the accident it was about 20 or 25 minutes late. According to all the witnesses, there was a very dense unsually heavy fog enveloping the track at the time of the collision. As the foggy condition will have an important bearing on the case, we briefly quote from the testimony of some of the witnesses for plaintiff and defendant on this point.

Plaintiff's witnesses:

Sport Hayes: "It was the foggiest morning that I ever saw. The fog was so dense that you could not see a man 150 yards."

D. B. Hayes: "There was a dense fog, and you could not see a man only a short distance away."

George L. Aycock, formerly State Senator: "*** It was rather foggy that morning. *** The sun wasn't shining."

H. E. Merrell: "It was a very heavy fog when we was out when the accident occurred."

Defendant's witnesses:

T. J. Bickall, conductor of the train: "It was very foggy; a very foggy morning in spots."

D. A. Robertson engineer: "*** It was quite foggy out of Dalhart to Stevens; that is a station west of Texhoma. *** The fog lay kind'a hazy and kind'a in little streaks. *** When we left Texhoma the conditions of the fog was slightly clearing away. It was almost practically clear on leaving Texhoma, but when we got down into the swell and sags between Texhoma and Goodwell occasionally there would be a little bank of fog-a bank or streak that was sagging down pretty close to the ground. When we came over near the place of the accident, a quarter of a mile before that, before we struck the handcar, or motorcar rather, there was quite a fog bank, the heaviest of any that we found between Texhoma and Goodwell, yet I could see over the bank. It was perfectly daylight, but it was lying down on the ground. *** When I saw the motorcar I was right in the midst of this dense fog bank. I don't think I could see them over two hundred feet, or somewhere in that neighborhood. ***"

D. H. Neeley: "The weather was very foggy; the fog was very dense."

J. E. Shelladay, fireman: "We left Texhoma about twenty-two minutes late on our schedule, probably twenty-five, and we were running about 40 miles per hour, and it had been very foggy that morning. If I remember right, the engineer had turned the headlight off at Stevens-I don't just recollect. I was busy a good deal of the time, but when we left Texhoma it was pretty clear, practically clear, but when we broke over a hill and entered a low place with a swag we struck heavy banks of fog. ***"

The deceased, as was his custom, was at the station at Goodwell with his section crew, on the morning of the accident at about 7 o'clock for the purpose of starting out for the...