Hines v. Dean
| Decision Date | 20 November 1923 |
| Docket Number | 12147. |
| Citation | 220 P. 860,96 Okla. 107,1923 OK 991 |
| Parties | HINES, DIRECTOR GENERAL OF RAILROADS, v. DEAN. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In order to constitute "actionable negligence," there must exist a duty on the part of the party charged, a failure of the party charged to perform that duty, and the existence of injury which is the proximate result of failure to perform such duty.
An instruction, which charged the jury that the defendant was charged by statute with the duty of giving certain signals and, if the jury believed the defendant failed to give such signals, the plaintiff would be entitled to recover as a matter of law unless the jury found that the plaintiff was guilty of negligence which contributed to the injury, was erroneous.
Where instructions are inaccurate and incomplete, and the inaccuracy or incompleteness is cured by other instructions and it is apparent the jury has not been misled, a case will not be reversed because of such inaccurate and incomplete instructions; but the jury is not supposed to know when the court correctly or incorrectly states the law, and it is prejudicial error for the court to give conflicting instructions to the jury where such conflicting instructions leave the jury to decide conflicting principles of law on material issues in the case.
Where the injuries complained of are of such a character as to require skilled and professional men to determine the cause and extent thereof, the question of the permanency of the injury is one of science and must necessarily be determined by the testimony of skilled professional persons; but, where the injuries sustained were of such character as not to require skilled and professional men to determine whether the injuries were permanent, it was not error to submit the question of the permanency of the injuries to the jury, in the absence of expert evidence of the permanency of the injury.
It is error to submit to the jury the question of recovery for future pain and suffering, where the nature of the injury is not such that laymen can with reasonable certainty know whether or not there will be future pain and suffering, and where the testimony of expert witnesses on that point is lacking.
While it is well established by the decisions of this court that the trial court should not instruct the jury that if a certain state of facts is found to exist such facts constitute contributory negligence and the plaintiff cannot recover, it is nevertheless the duty of the trial court to instruct the jury, upon request being made, what duty the law imposes upon the plaintiff as well as the defendant and that a breach of that duty is negligence.
Requested instruction No. 5 contained a correct statement of the duty of a person about to cross a railroad track, but the court did not err in refusing to give the same, as the other instructions sufficiently covered that question of law.
Appeal from Superior Court, Okmulgee County; H. R. Christopher Judge.
Action by Norma Dean, by her next friend, D. E. Dean, against Walker D. Hines, Director General of Railroads. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.
W. F Evans, of St. Louis, Mo., and Stuart, Sharp & Cruce and Ben Franklin, all of Oklahoma City, for plaintiff in error.
E. W. Smith, of Henryetta, for defendant in error.
This action was commenced by the defendant in error to recover damages for personal injuries sustained by her, resulting from a collision between a Ford automobile, driven by the defendant in error, with a locomotive operated on the St. Louis & San Francisco Railway Company's line. The parties will hereinafter be referred to as plaintiff and defendant as they appeared in the trial court.
The defendant complains of the giving of instruction No. 7, which was as follows:
"The court instructs the jury that, if you conclude that the defendant failed to give the signals required by the statute and hereinbefore explained to you, as a matter of law the plaintiff would be entitled to recover such damages as you may conclude she has sustained, unless you further find from the evidence in the case that the plaintiff was guilty of negligence which contributed to the injury."
In order to constitute actionable negligence, there must exist a duty on the part of the party charged and a failure of the party charged to perform that duty and the existence of injury which is the proximate result of failure to perform such duty. The instruction charged the jury that the plaintiff would be entitled to recover as a matter of law if the defendant failed to perform the duty required by statute relative to giving signals, and did not advise the jury that it was necessary that this failure to perform a statutory duty must have been the proximate result of the injury to the plaintiff. The instruction was therefore erroneous.
The only question then is whether the other instructions given by the court, taken together with this erroneous instruction, made it apparent that the jury was not misled by the giving of this erroneous instruction. While we have held that where instructions are inaccurate or incomplete, and the inaccuracy or incompleteness is cured by other instructions and it is clear that the jury has not been misled, a case will not be reversed because of the inaccurate or incomplete instructions, in Petroleum Iron Works Co. v. Bullington, 61 Okl. 311, 161 P. 538, the court said:
"The jury is not supposed to know when the court correctly or incorrectly states the law, and it is prejudicial error for the court to give conflicting instructions to the jury, and thus leave the jury to decide conflicting principles of law."
To the same effect are the cases of K. C., M. & O. Railway Co. v. Roe, 50 Okl. 105, 150 P. 1035, and Union Pacific Railway Co. v. Milliken, 8 Kan. 647.
The plaintiff contends that the error in instruction No. 7 is cured by instruction No. 3, which is as follows:
"The jury are instructed that, before the plaintiff can recover, she must prove by a preponderance of the evidence that her injuries were caused in the manner alleged in the petition, and that the defendants were guilty of one or more of the acts of negligence alleged in the petition, and that said act or acts were the direct and proximate cause of said injuries."
And instruction No. 6, which is as follows:
"The court instructs you, gentlemen of the jury, that the law requires the defendant to ring the bell or sound the whistle 80 rods before reaching a public crossing, and that a failure to do this is negligence, so that in this case if you believe from the preponderance of the evidence that the defendant was negligent in this regard, and that such negligence was the proximate cause of the injury, and that the plaintiff exercised ordinary care for her own safety, your verdict should be...
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