Lane v. Choctaw, O. & G. R. Co.

CourtSupreme Court of Oklahoma
Citation91 P. 883,19 Okla. 324,1907 OK 122
PartiesLANE v. CHOCTAW, O. & G. R. CO.
Decision Date05 September 1907

Syllabus by the Court.

Where an amended petition is filed in a cause, and no part of the original petition is referred to or adopted into the amended petition, such original petition is superseded, and is no part of the record; and while it may be introduced in evidence by the adverse party, the same as any other writing signed by the party, subject to be explained, its contents cannot be considered upon the trial, either as part of the record or as admissions of the plaintiff, unless introduced in evidence.

[Ed Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, § 736.]

Where the plaintiff sues a carrier of passengers for injuries alleged to have been received by him by the negligence of the carrier while riding on a baggage car, the carrier must plead its rules and regulations relating to passengers and where they may ride, and allege the violation thereof by the plaintiff, if it desires to avail itself of such a defense.

It is not, under our statutes, negligence per se for a passenger on a mixed railroad train to occupy a seat in a baggage car.

It is the duty of a carrier of passengers for reward to provide fit and suitable accommodations for all the passengers that it receives and attempts to transport, and "proper accommodations" means seats such as are usually provided and in use in a vehicle intended for the transportation of passengers.

[Ed Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, § 1054.]

A carrier of passengers for hire is not allowed to overcrowd its vehicles or cars, and a passenger who goes upon a train for passage is not negligent in occupying a position in the baggage compartment of a combination car, where there are no unoccupied seats in the passenger compartments or coaches.

[Ed Note.-For cases in point, see Cent. Dig. vol. 9, Carriers §1375.]

In order to absolve itself from liability for injuries to a passenger riding in its baggage car, the carrier must adopt and post in a conspicuous place in its passenger cars printed rules and regulations forbidding or warning passengers not to ride in such baggage car, and must, in addition to such notices, provide such passenger with proper accommodations in the passenger cars.

Where a carrier is operating a mixed train, and a passenger goes upon such train with his ticket for passage, and finds no vacant seats in the passenger cars, or there are no printed rules posted in the passenger coaches in such train warning passengers not to ride in baggage cars, it is not negligence for such passenger to take a seat in a baggage car; and the questions of whether the train was overcrowded or the rules posted, if controverted, are questions for the jury, and not the court.

Where there is a material controverted question of fact upon which reasonable minds might fairly come to different conclusions, it is error for the court to direct a verdict.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 171.]

Error from District Court, Pottawatomie County; before Justice B. F. Burwell.

Action by Lewllen C. Lane against the Choctaw, Oklahoma & Gulf Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed, and new trial ordered.

The plaintiff in error, L. C. Lane, commenced his action in the district court of Pottawatomie county against the Choctaw, Oklahoma & Gulf Railroad Company for the purpose of recovering damages for injuries alleged to have been caused by the negligence of the defendant's servants in the operation of a railway train upon which he was a passenger in May, 1902. The Choctaw, Oklahoma & Gulf Railroad Company was at that time a common carrier of freight and passengers by steam railway between the stations of Tecumseh and Shawnee, in Pottawatomie county, Okl., as well as to other points, both north and south of said stations. On the day of the alleged accident the company was operating a mixed train, composed of different cars for passengers, baggage, and freight, and the plaintiff purchased a ticket at the railway station at Tecumseh, and at the proper time boarded the train with a number of other passengers, and, observing no unoccupied seat in the compartments intended for passengers, went into a compartment used for transporting baggage and took a seat upon a box therein located. The car in which he took passage was a combination car, one portion or end of which was regularly provided with seats for passengers, and the other portion or end was used for baggage. There was a door opening between the two compartments. The train started north from Tecumseh station towards Shawnee, and the plaintiff and several other passengers were occupying the baggage compartment of the combination car. Whether there was a separate passenger coach in the train, in addition to the combination coach, was a disputed question of fact on the trial; there being evidence both ways on the subject. The train ran about a quarter of a mile, and then stopped. The engine was detached from the train and ran onto a switch, where it picked up three or four freight cars, either flat or box, conveyed them onto the main line, and coupled them to the cars containing the passengers. When the engine backed up with the freight cars attached to make the coupling onto the passenger cars, it is claimed that they were struck with such speed and force as to pitch the plaintiff off the box upon which he was seated, thereby causing certain injuries to one of his limbs, which developed into such a diseased condition as to require his leg to be amputated; and for his suffering, loss of limb, and expense of sickness and treatment, he brings this action, based upon the alleged negligence of the railway company in operating its train. The amended petition sets out the facts specifically and at length. The company answered by a general denial, coupled with an averment, in general terms, of contributory negligence on the part of the plaintiff. The plaintiff replied by general denial. The case was tried to a jury, and after all the evidence was introduced by both sides the court directed a verdict for the defendant and entered judgment of nonsuit. The plaintiff brings the cause here on petition in error.

Blakeney & Maxey and W. B. Crossan, for plaintiff in error.

C. B. Stuart and Thos. R. Beman, for defendant in error.


We are advised that the trial court held, as a matter of law, that by going into the baggage compartment and riding there the plaintiff was guilty of such negligence per se as would prevent a recovery of damages. Preliminary to a discussion of this question, there are some questions of practice which arose upon the trial that should be settled.

The plaintiff filed an original, a first, and a second amended petition. In the original petition it is averred that the train upon which plaintiff took passage was a mixed train composed of one passenger coach, one combination passenger and baggage coach, several box or freight cars, and a locomotive. In the amended petitions the averment is made that the train consisted of one combination passenger and baggage car, certain freight cars, and one locomotive. It is stated in the brief of plaintiff in error that the trial court, in deciding the case, held that the averment in the original petition that there was a passenger coach in the train was an admission by the plaintiff against his interest, and was conclusive against him and not subject to explanation or controversy. The original pleading was not introduced in evidence. The rule stated is one that applies to the pleadings upon which the case is submitted for trial. In the case of Lane Implement Co. v. Lowder & Manning, 11 Okl. 61, 65 P. 926, this court, in discussing a similar question, stated the law to be that "where a party to an action makes solemn admissions against his interest in a pleading, in the absence of mistakes on his part or on the part of his counsel who inserted them in such pleading, a court, in passing upon the sufficiency of a subsequent amended pleading filed by him, should take such admissions into consideration and treat them as admitted facts in the case." No authority is cited supporting this rule. It is probably stated too broadly, and is subject to some modification. The rule as stated supra is correct as applied to an amendment to a pleading; but the general rule is that an original pleading is superseded, and its effect as a pleading destroyed, by filing an amended pleading which is complete in itself and does not adopt any of the former pleading by reference. 1 Enc. Pl. & Pr. 625. In any case a distinction should be made between an admission and an allegation. One is in the nature of a confession of a fact averred by the adverse pleader. The other is an averment against the adverse pleader, which must be supported by proof. The authorities are not at all harmonious as to the effect to be given upon the trial to superseded pleadings. A few courts, and principally California, seem to have adopted the rule that a pleading which has been withdrawn by an amended pleading cannot be considered for any purpose on the trial; it being considered unjust to hold a party bound by statements which may have been inserted by inadvertence or mistake, and which he has voluntarily abandoned by filing a new pleading. Barber v. Reynolds, 33 Cal. 497; Kelly v. McKebben, 54 Cal. 192; Mecham v. McKay, 37 Cal. 154; Pence v. McElvy, 51 Cal. 222; Kentfield v. Hays, 57 Cal. 409; Pfister et al. v. Wade et al., 69 Cal. 133, 10 P. 369. But such superseded pleadings may be used for impeachment purposes, when relevant. In re O'Conner's Estate, 118 Cal. 69, 50 P. 4. In Smith v. Pelott et al., ...

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