Lusk v. Haley
| Decision Date | 27 May 1919 |
| Docket Number | 9230. |
| Citation | 181 P. 727,75 Okla. 206,1919 OK 158 |
| Parties | LUSK et al. v. HALEY. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Record examined, and held: (1) That there was sufficient evidence to take the case to the jury on the merits; (2) that the instructions given by the court state the law with substantial accuracy and sufficiently cover the issues joined by the pleadings and proof; (3) that in the opinion of the court it does not appear that any of the errors complained of based upon the ground of misdirection of the jury or the improper admission or rejection of evidence, or of error in any matter of pleading or procedure, have probably resulted in a miscarriage of justice or constitute a substantial violation of any constitutional or statutory right.
Additional Syllabus by Editorial Staff.
The only duty a railroad owes to a licensee in addition to the duty owed to a mere trespasser is to keep a lookout for his presence.
A railroad does not owe an unauthorized person upon its tracks the duty to use ordinary care to discover him on its tracks or his dangerous position, but, after discovering his peril must use ordinary care to avoid injury.
Trainmen are justified in presuming that persons on the track will retire to a place of safety if it appears that they know the train is approaching.
Evidence as to whether deceased, who was struck by a train, was a licensee or a trespasser, is immaterial, where it is conceded that engineer and fireman were keeping a sharp lookout.
Evidence as to whether there was anything to prevent the engineer from seeing deceased upon the track was admissible to show whether the engineer saw deceased on the track.
Evidence as to whether the engineer rung bell or sounded the whistle after passing a crossing before he struck deceased was admissible on the question of due care, in view of fact that engineer had discovered deceased in a place of peril.
Instructions covering the various questions of law arising out of the issues joined by the pleadings and the proof with substantial accuracy are all that is required.
Error from District Court, Murray County; F. B. Swank, Judge.
Action by Anna Haley against James W. Lusk and others, receivers of the St. Louis & San Francisco Railroad Company. Verdict and judgment for plaintiff, and defendants bring error. Affirmed.
W. F. Evans, of St. Louis, Mo., and R. A. Kleinschmidt and J. H. Grant, both of Oklahoma City, for plaintiffs in error.
Giddings & Giddings, of Oklahoma City, for defendant in error.
This was an action for damages for personal injuries resulting in death commenced by the defendant in error, Anna Haley, plaintiff below, widow of the decedent, against James W. Lusk, W. C. Nixon, and W. B. Biddle, receivers of the St. Louis & San Francisco Railroad, a corporation, plaintiffs in error, defendants below. Hereafter, for convenience, the parties will be designated "plaintiff" and "defendant" respectively, as they appeared in the trial court.
Upon trial to a jury there was a verdict for the plaintiff in the sum of $20,000, upon which judgment was duly rendered, to reverse which this proceeding in error was commenced. The grounds for reversal relied upon by counsel for the defendants are summarized in their brief as follows:
(1) Error of the court in overruling the motion of the defendants to direct verdict against the plaintiff at the close of the evidence.
(2) Error of the court in excluding competent and material evidence offered by defendants.
(3) Error of the court in admitting incompetent evidence on behalf of the plaintiff.
(4) Error of the court in giving to the jury instructions numbered 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18 and in giving each of said instructions to the jury.
(5) Error of the court in refusing to give to the jury instructions requested by the defendants, numbered from 1 to 17, inclusive, and in refusing to give each of said instructions to the jury.
(6) Excessive damages awarded by the jury, which appear to have been given under the influence of passion and prejudice.
(7) Misconduct of counsel for plaintiff to the material prejudice of defendants.
It seems that the deceased was an employé of the Pioneer Telephone & Telegraph Company, who, for several weeks prior to his injury, had been engaged in cooking for a gang of men engaged in doing reconstruction work for that company upon or near the right of way of the railway company between the towns of Stroud and Depew; the work camp being situated upon or near the right of way some 2 1/2 miles northwest of the latter point.
On the evening of December 18, 1915, the deceased went from the work camp to Depew for the purpose of purchasing medicine and other necessaries for his wife, who worked with him in the camp, and shortly after midnight he started to walk back to camp, upon the tracks of the railway company, in company with his brother Martin Haley and one Gilbert, who were also telephone company employés. Just before the three men had reached their destination, according to the theory of the plaintiff, they heard the whistle of a passenger train which was rapidly approaching from their rear, whereupon they immediately attempted to get off the track, but before the deceased could reach a place of safety he was struck by the locomotive of the train and killed.
Upon the trial and in their briefs counsel for the respective parties devoted considerable time to the development and discussion of the question whether the deceased was upon the track of the railway company as a licensee or as a mere trespasser, but as the only additional duty the defendant would owe the deceased if it was conceded that he was a licensee would be to keep a lookout for his presence, and the engineer and fireman testified without contradiction that they were keeping a sharp lookout for any one who might be upon the track, whether licensee or trespasser, we are unable to perceive how this question is very material to the consideration of the case upon its merits. The case, it seems to us, turns on the question whether there was any evidence tending to show that the engineer and fireman saw the plaintiff in a place of peril in time to save him from injury by the exercise of due care. The engineer testified that he was keeping a constant lookout on the night of the accident, and that with the headlight he was using he could see for seven or eight telegraph poles ahead of his train, but that he did not see the deceased until after the accident on account of a sharp curve in the track at the point where the accident occurred. The fireman testified that he also was keeping a careful lookout; that he discovered the three men walking single file in the middle of the track when his locomotive was about 500 feet from them. The following is an excerpt from his testimony as to what happened after that:
The first contention of counsel for the defendants is based upon the assumption that this positive evidence of the engineer that, although he was keeping a sharp lookout, he did not see the deceased until after he was hit, on account of the curve and of the fireman that after the deceased reached a place of safety he staggered back toward the track when the locomotive was almost upon him, and was hit, is...
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