Kugler v. White
| Decision Date | 26 June 1923 |
| Docket Number | Case Number: 11525 |
| Citation | 1923 OK 423,216 P. 903,91 Okla. 130 |
| Parties | KUGLER v. WHITE et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Railroads--Parties Defendant in Action for Wrongful Death--Federal Control Act.
The act of Congress of March 21, 1918, known as the Federal Control Act, construed as in no wise changing the local rule permitting an offending employe to be made a codefendant with his employer.
2. Same--Effect of General Order of Director General.
The order promulgated by the Director General of Railroads on October 28, 1918, and known as General Order No. 50, construed, and, held, that such order did not place a limitation upon the number of joint tort-feasors that may be joined as defendants in an action where a carrier corporation is one of such defendants, but had the effect of requiring the action to be prosecuted against the Director General instead of the carrier corporation.
3. Same--Employe as Joint Tort-Feasor--Waiver of Exemption.
The order promulgated by the Director General of Railroads on October 28, 1918, and known as General Order No. 50, examined, and, held, that if the order was intended as a limitation as to the number of defendants, it could have no greater effect than to create in favor of the employe a personal privilege or exemption which he could waive. Held, in this case that if such was the effect of the order, that such privilege was waived when not asserted in the trial court.
4. Evidence--Negative Testimony--Weight and Sufficiency.
Where a witness did not know of the existence of an alleged fact, or did not observe an alleged happening, coupled with inability to know whether the fact existed or whether the thing happened, it constitutes negative testimony, which has no probative force and does not require the submission of the matter to the jury.
5. Same--Positive Testimony.
When a witness was in a position to make observation as to whether a certain fact existed or a certain thing happened, and he testified that he did not know of the existence of the fact or did not observe that the thing happened, his testimony is not negative, but has probative force and must be submitted to the jury.
6. Trial -- Verdict -- Answers to Special Interrogatories--Action Against Railroad for Wrongful Death.
The general verdict returned by the jury in favor of the plaintiff and the negative answers to special interrogatories propounded, as to whether the whistle was sounded or the bell rung by the engineer in charge of the train, were in effect a finding by the jury that the failure to ring the bell or blow the whistle as required by law was the direct and proximate cause of the injury complained of.
7. Appeal and Error--Assignment of Error Waived.
Assignments of error not argued in the brief of plaintiff in error will be treated as waived in the appellate court.
8. Appeal and Error--Review--Questions of Fact--Verdict.
Where a cause is submitted to a jury, they are the triers of the facts, and it is not the province of the appellate court to weigh the evidence, and if there is any evidence in the record reasonably tending to support the verdict and judgment, and no substantial errors appear upon the trial, the judgment should not be disturbed on appeal.
9. Same.
Record examined, and held, that no substantial error appears in the trial in the court below, and that there is evidence in the record reasonably tending to support the verdict and judgment.
Commissioners' Opinion, Division No. 4.
Error from District Court, Custer County; Thos. A. Edwards, Judge.
Action of Della Lee White, administratrix of the estate of N. P. H. White, deceased, for and on behalf of Della Lee White, widow, and for and on behalf of the children and next of kin of the deceased, against the United States Railroad Administration, Walker D. Hines, Director General, the Chicago, Rock Island & Pacific Railroad Company, a corporation, and F. C. Kugler. Judgment in favor of plaintiff and against the United States Railroad Administration, Walker D. Hines, Director General, and F. C. Kugler. F. C. Kugler appeals. Affirmed.
C. O. Blake, K. W. Shartel, and W. R. Bleakmore, for plaintiff in error.
E. L. Mitchell for defendant in error.
¶1 The defendant F. C. Kugler appeals from the judgment of the district court of Custer county, wherein the plaintiff, Della Lee White, administratrix of the estate of N. P. H. White, deceased, obtained a judgment against the plaintiff in error and against the United States Ralroad Administration, Walker D. Hines, Director General, for the sum of $ 30,000 because of carelessness and negligence in striking the deceased, N. P. H. White, on a public railroad crossing between Indianapolis and Clinton, Okla., stations on the Chicago, Rock Island & Pacific Railway in Custer county, Okla.
¶2 John Barton Payne, Director General of Railroads, agent of the United States under the provisions of the transportation act of 1920, filed a cross-petition in error.
¶3 This action was begun in the district court of Custer county by the plaintiff on the 20th day of February, 1919. The petition charges that N. P. H. White received injuries at a public crossing on the C., R. I. & P. Railway on the 31st day of July, 1918, by being struck by an engine and cars being operated on the said railway, by reason of which injury he shortly thereafter died. That the operatives of the train were negligent and careless in that they ran the engine and cars upon and across the crossing as a high and dangerous rate of speed and negligently and carelessly omitted, while approaching said crossing, to give any signal by ringing the bell or sounding the whistle, or otherwise, although the railway company had neither gates nor flagman at the crossing, and that such carelessness and negligence was the proximate cause of the injury.
¶4 The defendant railway company answered by general denial, and affirmatively pleaded that it was not in charge of the operation of the road, since it had been taken over by the Director General of Railroads on the 31st day of December, 1917, and that it was being operated by him at the date of the injury.
¶5 The railroad administration answered by general denial, and a plea of contributory negligence. The defendant F. C. Kugler answered by general denial.
¶6 The cause was tried to a jury on the 13th day of November, 1919. Upon the announcement of rest by the plaintiff, each of the three defendants demurred to the plaintiff's evidence, for the reason that the evidence was insufficient to prove a cause of action in favor of plaintiff and against the defendants.
¶7 The demurrers were overruled as to the Railroad Administration and F. C. Kugler, and sustained as to the railway corporation for the reason that the operation of the road had been taken over by the railroad administration and was not being operated by the company.
¶8 The trial resulted in a verdict for the plaintiff, and damages fixed at the sum of $ 30,000. Defendants Railroad Administration and F. C. Kugler filed separate motions for new trial, which were overruled, and judgment for the plaintiff entered.
¶9 The plaintiff in error, F. C. Kugler, sets out and argues three specifications of error in his brief.
¶10 We shall examine the propositions argued by the plaintiff in error under paragraphs 2 and 3 of the specifications of error first.
¶11 Under the second and third paragraphs of the specifications of error, the question is raised that under the Federal Control Act of March 21, 1918, General Order No. 50, of the Director General of Railroads, promulgated October 28, 1918, F. C. Kugler was not a proper party defendant.
¶12 It will be borne in mind that F. C. Kugler, the plaintiff in error here, was the engineer in charge of the engine which killed the plaintiff's intestate. In the brief of the plaintiff in error it is said:
"No action for injuries or death, caused by the negligent operation of a railroad during federal control, could be brought or maintained against the employes of the Director General of Railroads."
¶13 The reason why this matter was never suggested to the trial court is not easy to see. We have searched the record carefully for any suggestion to the court that might have been made in the trial of the case below, that the Federal Control Act had taken away the right to sue an employe of the railroad along with the company itself. There seems to be no dispute that under the local rule the engineer, situated as was Kugler, would be a joint tortfeasor along with his employer, and suit might be prosecuted against him as such, or that he might have been sued alone for the injury. Under our statutes he could have been arrested and prosecuted for the commission of crime in his failure to ring the bell and blow the whistle.
¶14 We do not question the validity of the Federal Control Act, nor that of General Order No. 50, made by the Director General, but we think the Federal Control Act and General Order No. 50 do not have the far-reaching effect that is claimed by the plaintiff in error. There seems to be nothing in the Federal Control Act that changes the local rule. The act provided:
"That carriers, while under federal control, shall be subject to all laws and liabilities as common carriers, whether arising under state or federal laws, or at common law, except in so far as may be inconsistent with the provisions of this act, or any other act applicable to such federal control or with any order of the President."
¶15 Under the state law, the local rule, the employe might be sued as a joint tort-feasor with his employer...
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