Ft. Smith & W. R. Co. v. Moore
| Decision Date | 11 December 1917 |
| Docket Number | Case Number: 7918 |
| Citation | 1917 OK 611,169 P. 904,66 Okla. 322 |
| Parties | FT. SMITH & W. R. CO. v. MOORE. |
| Court | Oklahoma Supreme Court |
¶0 1. Railroads -- Crossing Accident --Question for Jury--Negligence.
In the instant case, under the testimony, there were issues of fact both as to negligence on the part of the railway company and as to contributory negligence on the part of the plaintiff, and the court did not err in submitting the entire question of negligence to the jury.
2. Appeal and Error--Instructions -- Presumption--Reversal.
Where the trial court in its instructions correctly stated to the jury the elements of damages that might be considered, and did not intimate that the jury might take into consideration any other matters in assessing damages, it will not be presumed that the jury considered other matters than those submitted by the court. A cause will not be reversed because the court did not specifically tell the jury not to consider other matters when the damages assessed are reasonable, and the defendant did not request the court to so instruct the jury.
3. Damages--Loss of Earning Capacity--Instruction.
In a personal injury suit, if there is any evidence from which the jury may, assisted by their common knowledge, fairly assess damages on account of decreased earning capacity, it is not error for the court to instruct the jury that they may consider decreased earning capacity in assessing damages.
4. Appeal and Error -- Instruction--Damages--Reversal.
It is the duty of the defendant in a damage suit to present to the court by way of requested instruction or in some manner to call the court's attention to the defendant's theory as to what matters the jury may consider in assessing damages. In case of failure on the part of the defendant so to do, and a verdict is rendered for damages which from the evidence is not excessive, and the defendant has made no assignment of error that the verdict is excessive, a cause will not be reversed because the court's charge may not accurately define the measure of damages.
5. Trial--Crossing Accident -- Negligence --Instructions.
While, as a general proposition of law, moving railway train, on account of its momentum, has the right of way at a public crossing, yet in case Where there is evidence to show that, when the plaintiff was first discovered by the engineer of the approaching train, the team of plaintiff was on the main railway track, having just passed over a switch higher than the main track which prevented the plaintiff from backing his wagon and permitting the train to pass, and where the engineer admits that when he discovered the plaintiff's peril he set the air brakes, but released the same because he saw the plaintiff's team pause, there also being testimony from which the jury might reasonably conclude that, if the air brakes had remained set, the train could have been stopped before striking the plaintiff, it is not error for the court to refuse to instruct the jury that the defendant was not required to stop its train and give precedence or right of way to the wagon in which the plaintiff was riding to pass over the crossing first; there being other instructions given which fairly covered the issues.
6. Same--Requested Instruction -- Refusal.
In a suit brought by the plaintiff for personal injuries sustained at a public railway crossing in which the plaintiff testified that he listened and did not hear the bell or whistle sounded, and that the same was not sounded, and was corroborated by the testimony of other witnesses, and the engineer on the train and other witnesses testified that the engineer rang the bell and sounded the whistle, it is not error for the court to refuse a special instruction requested by the defendant to the effect that, as a matter of law, the testimony of the plaintiff does not contradict such positive testimony of the engineer and other witnesses.
Error from District Court, Okfuskee County; Geo. C. Crump, Judge.
Action by John Moore against_ the Ft. Smith & Western Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Warner & Warner, for plaintiff in error.
John L. Norman and S. L. O'Bannon, for defendant in error.
¶1 The defendant duly appeals from a judgment of the district court of Okfuskee county for the sum of $ 1,250 in favor of the plaintiff because of injuries alleged to have been received on account of the negligence of the defendant at a public crossing over the defendant's railway in the town of Castle, Okfuskee county. The defendant, having filed demurrer which was overruled, answered by general denial and by plea of contributory negligence. The defendant urges as ground for reversal: (1) Error of the court in overruling defendant's demurrer to the evidence; (2) error of the court in giving instructions No. 16 and No. 25 to the jury; (3) error of the court in refusing to give instructions numbered 3, 6, and 7 requested by the defendant; (4) error of the court in admitting the testimony of the witness Palmer; (5) error of the court in refusing to grant a new trial and in rendering judgment for plaintiff.
¶2 We think, and so hold, that there is evidence to support the judgment, but the defendant says it was the duty of the court to give to the jury defendant's requested instruction No. 3, which reads as follows:
"You are instructed that it was the duty of the plaintiff on approaching the defendant's track to look and listen in each direction before going upon or attempting to cross over said track, at a point where looking and listening would have been effective, and that he should continue to look and listen until he crossed over the said track; and if you find from the evidence that the said John Moore failed to look and listen in the manner as above stated, before attempting to go upon or over said track, then the court instructs you that, even though the defendant might have been negligent, it will be your duty to return a verdict for the defendant."
¶3 The instruction would be, in effect, a finding by the court on the issue of contributory negligence.
¶4 The opinion of this court in St. L., I. M. & S. Ry. Co. v. Gibson, 48 Okla. 553, 150 P. 465, cited by defendant is not in point so far as the facts in the instant case are concerned. In the syllabus it is said:
"When plaintiff's own evidence is that deceased had waited to see the train pass, knew it was approaching, and ran upon the track immediately in front of and in full view of the moving cars, it could not be said the failure to ring the bell and sound the whistle was in any manner responsible for his going upon the track, and there is no question, on that phase of the case, to submit to the jury."
¶5 In other words, the court merely held that there was a failure to show negligence on the part of the railway company resulting in the injury. The object of giving alarm is to apprise those near the crossing of an approaching train. The admitted fact being that the deceased knew of the proximity of the train before attempting to cross, it could not be said reasonably that the sounding of the bell or whistle would have prevented the deceased from going upon the track, and that the failure to sound the same was a cause of the injury. In the case at bar, under the evidence, there were questions of fact to be determined both as to negligence on the part of the railway company and as to contributory negligence on the part of the plaintiff. The testimony of the plaintiff, corroborated by the testimony of other witnesses, is to the effect that immediately preceding his attempt to cross the railroad the plaintiff had unloaded his cotton at a gin near the railroad and driven off the scales; that he was about 30 or 40 feet from the railroad; that he looked up and down the railroad both ways and listened before he started; that he did not see nor hear any train; that no whistle was blown and no bell rung as required by law; that there were a number of box cars standing on the track which, with a seedhouse at the crossing and near the switch, obstructed the view; that it was necessary to cross the switch before crossing the main line; that the center of the track of the switch was about 21 feet from the center of the track of the main line; that the track of the switch was from 2 1/2 to 3 feet higher than the main track; that, after stopping, looking, and listening the plaintiff drove upon the switch, and as he crossed the switch saw the train approaching; that his horses were already upon the main line, and that it was impossible for him to back, on account of the elevation of the switch, his only method of escape being to cross the main line, if possible, before the train reached the crossing; that he made an attempt to do so; that just as his wagon was crossing the main track the hind part was caught by the engine, and the plaintiff thrown violently into the air, afterwards striking the ground. Though the engineer testified that he sounded both the whistle and the bell as required by law, a number of bystanders swore that neither the bell nor the whistle sounded until the danger of the plaintiff actually appeared. The engineer further testified that when he saw the plaintiff he set the air brakes, but the plaintiff paused, and he released the air brakes. The jury passed upon the credibility of the witnesses and the weight of the testimony, and we believe from all the facts and circumstances in evidence that the jurors were justified in concluding that the injury resulting from the negligence of the defendant without contributory negligence by the plaintiff. The defendant cites many authorities which we have examined and which in general correctly defines the respective duties of railroad companies and the public at railway crossings, but none of such authorities are at variance with the views we express, especially in view of the constitutional provision in this state making contributory negligence...
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