Kurn v. Maxwell
| Decision Date | 04 April 1944 |
| Docket Number | 31248. |
| Citation | 151 P.2d 386,194 Okla. 336,1944 OK 163 |
| Parties | KURN et al. v. MAXWELL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Sept. 12, 1944.
Syllabus by the Court.
1. Where the facts relied upon to establish alleged acts of negligence present a fact situation whereon reasonable minds might differ as to whether the defendant was guilty of negligence and whether the negligence determined was proximately related to and caused the injuries or damage complained of, the case must be submitted to the jury; the determination of liability by the jury under such circumstances is conclusive and binding on appeal.
2. While it is the duty of the trial court, in the exercise of sound discretion, to grant a new trial if, in its judgment the verdict is not supported by competent testimony, or if upon the whole record, it is convinced that justice has not been done, yet this does not prevent the trial judge from yielding his impression or opinion upon the testimony and adopting that of the jury if, upon consideration of the whole record, he is convinced that no prejudicial error has been committed by the court and that the verdict is sustained by sufficient competent proof which the jury has accepted and believed.
Appeal from District Court, Marshall County; J. I. Goins, Judge.
Action by Herman Maxwell against J. M. Kurn and John G. Lonsdale trustees for the St. Louis-San Francisco Railway Company, for personal injuries sustained by plaintiff when an automobile operated by plaintiff was struck by a train at a railroad crossing. The jury returned a verdict for plaintiff in sum of $1,250, the trial court overruled defendants' motion for new trial and reduced the judgment to $600, which order, upon reconsideration was vacated, the motion for new trial was overruled, and judgment entered in accordance with the verdict, and defendants appeal.
Affirmed.
M. G. Roberts, of St. Louis, Mo., Cruce, Satterfield & Grigsby and Ben Franklin, all of Oklahoma City, and Welch & Welch, of Madill, for plaintiffs in error.
Sam Y. Colby, of Madill, for defendant in error.
Herman Maxwell brought this action in the District Court of Marshall County for personal injuries received by him when a train belonging to and operated by the defendants ran into the side of the car operated by him. The trial resulted in a verdict for the plaintiff in the sum of $1250. The trial court overruled the motion for new trial and reduced the judgment to $600. Thereafter, upon reconsideration of the motion for new trial, the court vacated this order reducing the judgment, overruled the motion for new trial and entered judgment in accordance with the verdict, provoking this appeal. The parties will be referred to herein as they appeared in the trial court.
The uncontroverted facts material to the issues in this case are that the defendants' railroad runs north and south across Main Street and through the town of Madill. Four tracks of the defendant railway system run across said street. The so-called Ardmore passenger motor train was standing approximately 50 feet south of Main Street when the plaintiff approached the track area of the railway company 250 to 300 feet west of the track on which the passenger train was standing. The plaintiff was approaching said track at a speed of 20 to 25 miles per hour. He looked to the south and observed the train standing on the Ardmore track. He looked to the north and observed that the track area was clear in that direction. He did not thereafter look to the south nor further observe the passenger train.
Plaintiff testified that the bell did not ring and the horn did not sound and the whistle did not blow; that he did not again see the train until just immediately before it collided with his automobile at which time he swerved to the right. Another witness testifying in behalf of the plaintiff said that he had crossed the tracks of the railroad company and was walking west when he heard a crash; that he did not hear a bell ring or a whistle sound but that he was not paying any particular attention; that the train pushed the automobile of plaintiff about 60 feet.
The plaintiff testified that he was an able-bodied man prior to the accident; that his shoulder was hurt in the collision and that his arm and shoulder are weak and he cannot lift with his arm; that he develops headaches and becomes faint and dizzy when he works; that he received a blow on his head which produced a cut that required six stitches.
Dr. Holland, who attended the plaintiff immediately after the accident and made several examinations of him thereafter, testified that he was the railroad company's doctor in the Madill community; that when he saw him the plaintiff was dazed and unconscious and did not know what he was doing; that he had quite a cut and bruise at the right mastoid; that such an injury could be permanent; that it could cause dizzy spells; that plaintiff complained about his arm and shoulder and complained that he had dizzy spells; that traumatic neuritis could result from a traumatic injury to the shoulder and could produce partial loss of use of the shoulder or arm; that plaintiff suffered considerable shock from the collision and as a result thereof vomited until midnight.
All of the train crew and other employees of the railway company and other witnesses testified that the automatic bell of the train was ringing constantly from the time the train came into the yards until the collision occurred and that the horn was sounded four times when the train started moving from its standing position toward Main Street, and the testimony offered on the part of the defendants and not controverted is almost, if not, conclusive to the effect that the train was proceeding at a rate of from four to six miles per hour when the collision occurred.
The court instructed the jury that the acts of negligence relied upon by the plaintiff were the failure of the engineer operating said train to blow his whistle or horn or ring the bell or give any other signal or warning of approach of the train. The court stated to the jury that plaintiff's injuries were alleged by him to be the direct result of such carelessness and negligence of the defendants. The court further told the jury that the burden was on the plaintiff to prove, by a fair preponderance of the testimony, all the material allegations made. The court correctly defined negligence to the jury and it correctly defined and applied the law of contributory negligence. The jury was told by the court that if the defendants operated the train in a careless and negligent manner and that by so operating the train in a careless and negligent manner the plaintiff received injuries by virtue of a collision through no fault of his, then the verdict should be for the plaintiff in such an amount as would compensate him for the physical pain and suffering that he had endured not to exceed the amount sued for.
No instructions were requested by either party and no objections made nor exceptions saved by either party to any of the instructions given.
The first contention made by the defendants is that:
"There were no questions of fact for the determination of the jury in this case for the reason that no primary negligence was shown, and the physical facts conclusively show that the proximate cause of the accident was plaintiff's own acts."
It will be observed from what has been said and from the court's instructions that liability in this case must depend upon the failure to blow the whistle or ring the bell. The defendants take the position in arguing the above proposition that even though the engineer failed to give the proper warning signals that the uncontroverted facts disclose that the plaintiff's own negligence was the proximate cause of the collision. This contention is predicated upon the...
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