Enid City Ry. Co. v. Reynolds
| Decision Date | 18 July 1912 |
| Docket Number | Case Number: 1698 |
| Citation | 34 Okla. 405,126 P. 193,1912 OK 493 |
| Parties | ENID CITY RY. CO. v. REYNOLDS. |
| Court | Oklahoma Supreme Court |
¶0 1. APPEAL AND ERROR--Verdict--Conflicting Evidence--Review. A verdict found on conflicting testimony, where there is evidence reasonably tending to support such verdict, is conclusive on the Supreme Court.
2. HUSBAND AND WIFE--Married Women--Personal Injuries--Right to Sue. A married woman, though living with her husband, has a statutory right to her separate earnings, and a natural right to her health, strength, skill, and capacity to earn; and, under section 3655, Comp. Laws 1909, she may maintain an action in her own name for any injuries sustained to either her statutory or natural rights.
3. HUSBAND AND WIFE--Injuries to Wife--Capacity to Earn--Medical Treatment. In an action for personal injuries, caused by the negligent act of another, a married woman living with her husband, and suing in her own name, may recover for the loss of capacity to earn, if resulting from such negligence, and for cost of medical treatment, if paid, or to be paid, out of her separate earnings.
4. TRIAL--Request to Charge--Instructions Given. Where the special instructions offered by a party to an action are in substance covered by other instructions in the court's charge, it is not error to refuse them.
5. TRIAL--Argument of Counsel--Comments on Evidence--Conclusions. A judgment will not be reversed because of remarks made by counsel in the closing argument, where such remarks are mere conclusions drawn from the circumstances surrounding the case, and from testimony admitted without objection.
Kruse & Hills, for plaintiff in error.
Parker & Simons, for defendant in error.
¶1 The first assignment of error urged is that the verdict was contrary to law and not sustained by the evidence. The testimony was conflicting on the material facts involved. The question whether or not the conductor spoke to plaintiff or motioned or beckoned to her to arise and get off, and whether her rising was in response to the conductor's request, and whether he took hold of her arm to support her, and just as she was in the act of stepping out onto the footboard, and without stopping the car, he withdrew such support, the withdrawal of which, while the car was in motion, being, as alleged, the proximate cause of the injuries, were material facts in support of the allegation of negligence. The plaintiff testified that the conductor, while the car was yet in motion, traveling at about the same rate it had been traveling, motioned to her and spoke to her to arise; that in response to such request she arose, thinking the car would slow down, and that the conductor would help her off; that in turning between the seats with her face toward the south, preparatory to alighting, the conductor took hold of her arm, which gave her sufficient support to steady her, but which was all the support she had, and that just in the act of stepping out onto the footboard he let loose of her arm and reached his hand up for some purpose--she thought to ring the bell--and that, being left without any support, she fell out onto the street. The conductor denied this statement, and testified in substance that he did not request her to arise, and that she arose apparently of her own accord, stepped out onto the footboard, and fell out onto the street; that he was not within reach of her, but stood to the rear of the seat on which she sat; that he spoke to her and told her to wait till the car stopped. This testimony was partially corroborated by the witnesses Crawford and Johnson for the defendant. Crawford was sitting on the seat behind her, and Johnson on the seat in front of her. Crawford claimed to have seen her when she fell. Johnson, sitting with his back to her, did not see her until after she had fallen. He testified that the conductor was standing on the rear end of the car at the time. Crawford testified that the conductor stood at the end of the seat just behind the plaintiff at the time the accident happened, and was holding to an upright just to the rear of her seat. The conductor testified the same. The jury had all this testimony before them, together with all the testimony on the less material facts. They were properly instructed by the court that they were the exclusive judges of the weight to be given the testimony and of their province in determining the credibility of the witnesses. Upon this testimony, though conflicting, they returned a verdict in favor of plaintiff. In doing so they must necessarily have given greater weight to plaintiff's testimony. This was within their province to do; and, inasmuch as there was sufficient testimony to reasonably support the verdict, it will not be disturbed by this court. The rule is well settled that a verdict, found on conflicting testimony, where there is evidence reasonably tending to support such verdict, is conclusive on the Supreme Court. Covington v. Fisher, 22 Okla. 207, 97 P. 615; Chicago, R. I. & P. Ry. Co. v. Mitchell, 19 Okla. 579, 101 P. 850; Loeb v. Loeb, 24 Okla. 384, 103 P. 570; Bird v. Webber, 23 Okla. 583, 101 P. 1052; Chicago, R. I. & P. Ry. Co. v. Broe, 23 Okla. 396, 100 P. 523; Armstrong, Bird & Co. v. Crump, 25 Okla. 452, 106 P. 855; Kaufman v. Boismier et al., 25 Okla. 252, 105 P. 326. The second and third assignments may be considered together, as both go to the admissibility of testimony. The second complains of the admission of evidence of plaintiff's earnings, and the third of evidence of her expenses in treating the injury. The evidence showed that she had been earning $ 9.50 per week, and that her treatment would cost about $ 150. This brings us to a consideration of the question: What may be recovered by a married woman suing in her own mime for personal injuries caused by the negligent act of another? It is contended by plaintiff in error that a married woman living with her husband cannot recover for loss of earning capacity, nor for expense of medical treatment for her injuries, and in support of such contention cites Brooks v. Schwerin, 54 N.Y. 343; Uransky v. Dry Dock, etc., R. Co., 118 N.Y. 304, 23 N.E. 451, 16 Am. St. Rep. 759; Georgia Railroad & Banking Co. v. Mahala J. Tice, 124 Ga. 459, 52 S.E. 916, 4 Ann. Cas. 200; Atchison, T. & S. F. Ry. Co. v. McGinnis, 46 Kan. 109, 26 P. 453; Union St. R. Co. v. Stone, 54 Kan. 83, 37 P. 1012; Denver & R. G. R. Co. v. Young, 30 Colo. 349, 70 P. 688. In Brooks v. Schwerin, supra, the contention of plaintiff in error is not supported. In the opinion the court says:
¶2 Neither does Uransky v. D. D., E. B. & B. R. Co., supra, support the contention. In that case the court held that plaintiff could not recover because of lack of necessary allegations in the petition, and not because she was precluded under the circumstances from recovery. Neither does A., T. & S. F. Ry. Co. v. McGinnis, Street Ry. Co. v. Stone, nor D. & R. G. Ry. Co. v. Young, supra, support the contention of plaintiff in error. In each of these cases it is conceded that a married woman, suing in her own name for personal injuries, may recover for injuries which incapacitate her from performing labor or carrying on business on her own separate account. In the case at bar, there were no special findings by the jury, nor separate items of damage found; but upon the theory that plaintiff was entitled to recover in her own name such damages as would fairly compensate her for the injuries sustained, the court instructed the jury as follows:
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