Ferris v. Shandy
| Decision Date | 11 June 1918 |
| Docket Number | 8875. |
| Citation | 174 P. 1060,71 Okla. 35,1918 OK 355 |
| Parties | FERRIS et al. v. SHANDY. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Sept. 5, 1918.
Syllabus by the Court.
Petition examined, and construed to allege that the acts of negligence set out and relied upon at the trial were the proximate cause of the accident from which plaintiff received his injuries.
Evidence examined, and held to reasonably support the verdict of the jury.
In an action by a servant for damages resulting from the negligence of the master, the plaintiff is required to establish negligence on the part of the defendant, and is further required to show that such negligence was the proximate cause of the injuries complained of.
Negligence may be established by direct evidence when this character of proof is obtainable, and it may also be established by proof of other facts and circumstances, and the causal connection between the negligence alleged and the injuries received may be shown by proof of such facts as logically create the inference that the negligence proved contributed to the injury.
It is the duty of a railroad company to make and keep its roadbed and tracks in a reasonably safe condition, and if it permits same to become and remain out of repair, and as a result thereof an accident is caused, resulting in injury to an employé, the company will be liable.
Plaintiff was 25 years of age, was serving as fireman, and was earning $3.45 per day. The power of sight in his left eye was destroyed; that in his right eye diminished one-third. He was injured in his right groin. He suffered constantly, and was nervous and miserable all the time. His lower limbs were affected; he could not walk right; and his injuries were permanent. His expectancy, according to the American Mortality Table was 38.81 years. There is nothing in the record to indicate that the jury were influenced by passion or prejudice. Held, that a verdict for $18,750 was not excessive.
Where a question has been asked and answered without objection, it is not error to sustain an objection to practically the same question.
General orders issued by a train dispatcher to the crew of a train that was derailed, calling attention to the condition of the track and road of a railroad company, and directing the rate of speed to be maintained over certain portions of the track are admissible for the purpose of showing notice to and knowledge upon the part of defendant as to the condition of the track and roadbed at the time and place of the accident.
Instructions examined, and held to contain no prejudicial error.
Error from District Court, Hughes County; Geo. O. Crump, Judge.
Action by B. F. Shandy against H. C. Ferris and another. Judgment for plaintiff, and defendants bring error. Affirmed.
E. R Jones and E. H. Foster, both of Muskogee, for plaintiffs in error.
Anglin & Hall and J. L. Skinner, all of Holdenville, for defendant in error.
B. F Shandy commenced an action in the district court of Hughes county against H. C. Ferris and Alexander New as receivers of the Missouri, Oklahoma & Gulf Railway Company, to recover damages for personal injuries alleged to have been caused by the negligence of defendants. Defendants filed answer consisting of a general denial, and specifically pleaded contributory negligence and assumption of risk. Verdict and judgment were for plaintiff, and defendants prosecute error. The parties will be referred to as they appeared in the trial court.
The specific acts of negligence relied upon are: First, that the train was being propelled at an excessive rate of speed; second, that defendants' track and roadbed were defective and in bad state of repair at the place of the accident; and, third, that defendants were hauling in said train a car with a defective wheel.
Defendants contend that it is nowhere alleged in the petition that the negligence of the engineer in driving his engine at an excessive speed, or that the defective condition of the track, contributed in any wise to or caused the derailment which was the immediate and proximate cause of plaintiff's injuries. In this we think defendants are mistaken, as we construe the petition to allege that the negligence of defendants in the particulars stated was the proximate cause of the accident from which plaintiff received his injuries.
On the trial of the case plaintiff offered evidence to show the speed of the train and the condition of the track and roadbed at the time the train was derailed. It appears from plaintiff's evidence that the derailment occurred on a curve north of the Atwood station. The train at the time was running at a speed of from 30 to 45 miles per hour. At the place of the accident from one half to two-thirds of the cross-ties were old and rotten. The roadbed was considerably washed, and there were no shoulders thereon at the place of the wreck. The track was not ballasted, and was in bad shape. Plaintiff testified that the tender was the first part of the train to leave the track, and that, believing his position to be perilous, he jumped from the moving train, and fell across the rails on a side track, and suffered the injuries complained of; that the sight of his left eye is totally destroyed, and the power of vision in his right eye was impaired to the extent of one-third or more; and that he was otherwise injured.
Defendants contend that the evidence shows that the derailment was caused by the defective condition of a car wheel which it had recently purchased, and which had been inspected by it the day previous, and which defect in the wheel was latent and hidden, and was not discovered by the inspection, and that therefore the claim of negligence has been disproven. It is true that plaintiff was bound to establish negligence upon the part of the defendant, and to go further and prove such negligent acts were the proximate cause of the injuries received, and it was not sufficient merely to allege and prove that defendants were negligent in one or more of the particulars alleged.
In actions between master and servant the fact of an accident carries with it no presumption of negligence on the part of the master, but negligence in such case is an affirmative fact which the injured employé is required to establish, and he was further required to establish that such negligence proximately caused the injuries complained of. The authorities in support of this rule are collected in Ponca City Ice Co. v. Robertson, 169 P. 1111; St. L., I. M. & S. Ry. Co. v. McWhirter, 229 U.S. 265, 33 S.Ct. 858, 57 L.Ed. 1179. And this rule applies in actions governed by the Federal Employers' Liability Act. A., T. & S. F. R. Co. v. Swearingen, 239 U.S. 339, 36 S.Ct. 121, 60 L.Ed. 317.
Negligence may be established by direct evidence when this character of proof is obtainable, and it also may be established by proof of other facts and circumstances, and likewise the causal connection between the negligence alleged and the injuries received may be shown by proof of such facts as logically create the inference that the negligence proved contributed to the injury. Lusk et al. v. Phelps, and cases cited, 173 P. 371 (not yet officially reported).
It is the duty of a railroad company to make and keep its tracks and roadbed in a reasonably safe condition; and, if it permits same to become and remain unsafe and out of repair, and as a result thereof an accident is caused, resulting in injury to an employé, the railroad company will be liable. K. C., Ft. Scott & Gulf R. R. Co. v. Kier, 41 Kan. 661, 671, 21 P. 770, 13 Am. St. Rep. 311; Krogg v. Atlanta & West Point R., 77 Ga. 202, 4 Am. St. Rep. 79; Taylor, Bastrop & Houston Ry. Co. v. Taylor, 79 Tex. 104, 14 S.W. 918, 23 Am. St. Rep. 316; Swadley v. Mo. P. Ry. Co., 118 Mo. 268, 24 S.W. 140, 40 Am. St. Rep. 366; Fuller v. Tremont Lumber Co., 114 La. Ann. 266, 38 So. 164, 108 Am. St. Rep. 348; Meloy v. C. & N.W. Ry. Co., 77 Iowa, 743, 42 N.W. 563, 4 L. R. A. 287, 14 Am. St. Rep. 325.
The question whether the derailment was caused by the excessive speed of the train and the defective condition of the track and roadbed, or whether it was caused solely by the defective condition of the car wheel, was submitted to the jury, who found in favor of the contention of plaintiff, and there was plenty of evidence to sustain the verdict.
We cannot agree that the evidence conclusively establishes that the derailment was caused solely by the broken flange on the car wheel, but, on the contrary, approve the finding of the jury that the speed at which the train was running and the defective and unsafe condition of the track and roadbed at the place of the accident were contributing causes to the derailment, even if we assume that the broken car wheel contributed to the accident. The verdict was for $18,750, which amount defendants contend is excessive. The question whether plaintiff's injuries resulted from the accident was properly submitted to the jury, who found against defendants, and we, therefore, pass to the consideration of the claim that the amount awarded is excessive.
Plaintiff was 25 years of age, was employed in the position of fireman; was working regularly, and earning $3.45 per day. The power of vision in his left eye was totally destroyed, and in his right eye diminished one-third. He testified that he was injured in his right groin; that he suffered constantly, and was nervous and miserable all the time. Two physicians testified that he seemed nervous and was suffering from general traumatic conditions; that he did not walk right; that his lower limbs were affected, which condition was caused by some kind of blow or jar, and that he would not recover from the injuries from which he was suffering, but that said injuries might...
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