Enghlin v. Pittsburg County Ry. Co.

• Decision Date: 25 September 1934
• Docket Number: 21980.
• Parties: ENGHLIN v. PITTSBURG COUNTY RY. CO.
• Court: Oklahoma Supreme Court

36 P.2d 32

169 Okla. 106, 94 A.L.R. 1180, 1934 OK 466

ENGHLIN v. PITTSBURG COUNTY RY. CO.

No. 21980.

Supreme Court of Oklahoma

September 25, 1934

Syllabus by the Court.

1. In an action at law where a verdict has been returned and a judgment rendered upon such verdict and the evidence is conflicting, and there is evidence reasonably tending to support the verdict, the Supreme Court will not weigh the evidence to determine where the preponderance thereof lies and will not substitute its judgment for that of the jury.

2. Persons of intelligence and observation may testify as to the speed of a moving automobile without qualifying as experts the lack of expert knowledge concerning such matter affects the weight to be given by the jury to such evidence rather than the competency of the witness.

3. Where, in an action for damages for personal injuries, a physician testifies for plaintiff as to the condition of plaintiff, and gives his opinion as to the cause of such condition, he may be cross-examined concerning alleged statements he had theretofore made in a confidential letter written to another physician, who had treated plaintiff indicating a doubt as to the cause of the condition of plaintiff as testified to by him, where the objection goes only to the competency, relevancy, and materiality of the testimony and not to the competency of the witness.

4. Evidence as to the result of an experiment is admissible where it is shown that the conditions under which the experiment was made were the same or similar to the circumstances prevailing at the time of the occurrence involved in the controversy.

5. An instruction to the effect that in approaching a dangerous street car crossing in an automobile at a rapid rate of speed it was the duty of the plaintiff, who was the guest of the driver and whose negligence in the matter, if any, was not imputable to the plaintiff, to moderate the speed of the automobile and endeavor to get same under control, is error.

Appeal from District Court, Pittsburg County; Harve L. Melton, Judge.

Action by Anna Enghlin against the Pittsburg County Railway Company. Judgment for defendant, and plaintiff appeals.

Reversed and remanded for a new trial.

Arnote & Arnote, of McAlester, for plaintiff in error.

Carl Monk and James H. Gordon, both of McAlester, for defendant in error.

RILEY Chief Justice.

This is an appeal from a verdict and judgment against plaintiff in error in an action to recover damages for personal injuries growing out of a collision between an automobile in which plaintiff was riding and a street car operated by defendant.

Plaintiff in her petition alleges in substance that on the 9th day of April, 1929, at the invitation of one Dr. J. C. Bentley, she accompanied him as a guest on a pleasure drive in his automobile, Dr. Bentley driving the car and plaintiff sitting by his side; that they were driving east on Polk avenue in the city of McAlester; that defendant, through its servants, agents and employees, carelessly and negligently operated one of its cars going north on First street in said city in such a manner that, by the carelessness and negligence of the employees of defendant in operating said street car, it collided with and struck the automobile in which plaintiff was riding as it crossed the street car track at the intersection of said streets; that said street car was being negligently operated, in that it was being driven at a high rate of speed of 30 miles an hour; that the operator failed to sound the whistle, gong, bell, or horn, or to give any other signal of the approach of said street car at said crossing; failed to slow down said street car at said crossing so as to have same under control; failed to slow down or stop said street car after discovering plaintiff, and the car in which she was riding, approaching the said crossing; carelessly and negligently operated said street car in a reckless and imprudent manner so as to endanger life and property and at a greater rate of speed per hour than was permitted by the ordinances of the city of McAlester, and in violation of certain specific provisions of the ordinances of the city. Said sections were specifically pleaded, and copies attached to the petition as a part thereof. The petition further alleged that the crossing where the collision occurred was a dangerous crossing, in that the view of same was obstructed in approaching the crossing on the street car track from the south by a steep incline on Polk avenue, and by embankments on both sides of the street car track on First street south of Polk avenue, and by the growth of trees, shrubs, and other vegetation on the side of Polk avenue, all of which was well known to defendant and its employees.

Plaintiff's alleged injuries were specifically stated, and she alleged that as a result thereof she was greatly bruised and wounded, suffered great pain and mental anguish, and nervous prostration.

Defendant answered by general denial, and further alleged in substance that, if plaintiff was injured as alleged, such injuries were due solely to negligence and lack of care on the part of plaintiff herself, in that plaintiff and Dr. Bentley were engaged in a joint adventure, further alleged that plaintiff was not exercising ordinary and reasonable care for her own safety; that she approached the street car crossing without looking or listening for approaching street cars; that plaintiff failed to warn or direct the driver to slow down on approaching the crossing or bring said automobile to a full stop before entering the intersection, as required by the city ordinance; that she failed, neglected, and refused to warn or direct the driver to sound a signal when approaching said intersection as required by section 34 of the ordinance of the city; that she carelessly and negligently permitted the driver of said automobile to run onto, strike, and collide with the street car; that, if plaintiff was injured as alleged in the petition, her injuries were proximately caused by her contributory negligence.

Reply was a general denial.

The cause was tried to a jury, resulting in a verdict and judgment for defendant, and plaintiff appeals.

There are nine assignments of error grouped under four propositions.

It is first contended that the verdict is contrary to the evidence and the law.

Under this proposition, plaintiff in effect contends that the preponderance of the evidence is so clearly in her favor as to require a reversal. Defendant likewise contends that the preponderance of the evidence is all in its favor.

The parties argue the case on this question as though this court, like a jury, is to weigh the evidence and determine the controverted issues of fact. It is not for this court to determine from conflicting evidence where the weight thereof lies.

Questions of fact in cases of this kind are for the jury to determine. The record discloses that plaintiff produced evidence which, if believed by the jury, or if accepted by the jury as being of the greater weight, would clearly entitle her to a verdict. On the other hand, defendants produced evidence which, if believed by the jury or accepted by the jury as being of greater weight, entitled it to a verdict. Thus the evidence on the material questions of fact is in direct conflict.

In an action at law where a general verdict has been returned and a judgment rendered upon such verdict, and the evidence is conflicting and there is evidence reasonably tending to support the verdict, the Supreme Court will not weigh the evidence to determine where the preponderance lies, and will not substitute its judgment for that of the jury. To attorneys who are not yet convinced that this rule is firmly established in this state, we need only to refer to the Oklahoma Civil Digest, col. 1, pars. 243-248, inclusive, and the several hundred cases there cited.

The second proposition is that the court erred in admitting evidence over the objection of plaintiff. Under this proposition the admission of testimony by witnesses on three separate questions is urged as error:

First, the question of speed at which the automobile in which plaintiff was riding, was being driven as it approached the intersection. The evidence of plaintiff was to the effect that Dr. Bentley was driving his automobile at a moderate rate of speed when approaching the crossing. Just before crossing First street, he stopped his automobile about 25 or 35 feet west of the street car track; that he looked in both directions along the street car track, and observed no street car approaching, whereupon he proceeded to cross the intersection, and had attained a speed of about 4 to 6 miles per hour when the street car struck the automobile. Defendant produced as a witness Mrs. Ethel Ingold. She testified that she was a passenger on the street car that collided with Dr. Bentley's automobile; that she was seated about the fourth seat on the east side of the street car; that she saw the automobile as it approached the intersection. The record of her testimony from this point is:

"Q. I will ask you to state what speed the automobile was coming, if you know? A. Well, it seems to me it was coming.

Mr. Arnote: Object to what it seems to her.

Q. Just from what you observed?

Mr. Arnote: Object to it because she is not qualified to state.

The Court: Objections sustained, exceptions saved by defendant to the ruling of the court.

Q. Was the car coming fast or slow, the automobile I mean. A. It seemed to me-

Mr. Arnote: Object to what 'It seemed to me,' Your Honor.

The Court: Overruled, exceptions saved by the plaintiff to the ruling of the court.

A. At a rapid rate, it seemed to me it was coming.

Mr Arnote: Ask to strike the answer because it is just...