Marth v. Kingfisher Commercial Club

• Decision Date: 10 November 1914
• Docket Number: Case Number: 3850
• Citation: 1914 OK 539,144 P. 1047,44 Okla. 514
• Parties: MARTH v. KINGFISHER COMMERCIAL CLUB et al.
• Court: Oklahoma Supreme Court

1914 OK 539

144 P. 1047

44 Okla. 514

MARTH v. KINGFISHER COMMERCIAL CLUB et al.

Case Number: 3850

Supreme Court of Oklahoma

Decided: November 10, 1914

Syllabus

¶0 1. APPEAL AND ERROR--"Law of the Case"--Decision on Former Appeal--Grounds for Reversal--Refusal of Instruction. The law' as declared in a former appeal, where there is no material difference in the evidence or questions presented, is the "law of the case" during the subsequent trial or appeal. The refusal of an instruction embracing the law as declared in such former appeal constitutes reversible error.

2. NEGLIGENCE--Action for Personal Injuries--Contributory Negligence--Burden of Proof--Refusal of Instructions. In an action for personal injury, where the defendants allege that plaintiff was guilty of contributory negligence and plaintiff's evidence shows the defendants guilty of negligence, with nothing in the circumstances establishing contributory negligence on his part, it is error for the court to refuse to instruct the jury that the burden of proving contributory negligence is on the defendants.

3 MUNICIPAL CORPORATIONS--Streets--Injury to Traveler-- Instructions. Where the court instructs the jury that those defendants who devised means to raise money for a celebration for a Fourth of July, and outlined the program which was advertised in the papers to secure the attendance of a crowd at such celebration, would not be liable for injury to the plaintiff in the absence of proof to connect them with the race itself on the day of the injury, and that only those so proved to be connected with it on such day would be liable, held, that such instruction was prejudicial to the plaintiff. The court should have instructed the jury under the facts in this case that the Commercial Club and its codefendants, at whose instance and under whose supervision the race was promoted and conducted, were liable to a traveler upon such street, who without fault on his part was struck and injured by one of the horses in the race, if at such time said defendants were the promoters of and had knowledge that the race in question was to be conducted as a part of the program.

M. W. Hinch, for plaintiff in error.

F. L. Boynton and Geo. L. Bowman, for defendants in error.

RITTENHOUSE, C.

¶1 This action was brought against the Kingfisher Commercial Club, a corporation, David Weinburger, A. E. Bracken, Elmer Solomon, H. T. Davis, and George H. Laing, by Franz F. Marth, to recover damages for personal injuries. It is alleged in plaintiff's petition that the Kingfisher Commercial Club is a private corporation, organized under the laws of Oklahoma, and that the other defendants are the duly authorized officers, agents, and representatives of said Commercial Club. It is further alleged that the object and purpose of said Commercial Club was to build up and encourage trade and commerce from the territory tributary to the city of Kingfisher; that shortly prior to the 4th day of July, 1905, the Commercial Club, through its representatives, officers, and agents, duly elected and appointed, instituted a movement to celebrate the 4th of July; that the purpose for which said celebration was made was to build up trade and commerce for the said city of Kingfisher, and that the codefendants of said Commercial Club were the duly authorized agents and representatives of said club in arranging and carrying out the celebration; that said celebration was advertised very extensively, and an invitation was extended to the public generally to attend the same; that the principal business thoroughfare of said city is commonly known as Main street; that the defendants inclosed a portion of said street by stretching ropes across the same and across the streets and avenues that intersected the same, and that such arrangement of said street was made for the object and purpose of conducting within said inclosure a horse race; that on said day and during the celebration the Commercial Club, through its officers and agents, placed several wild and half broken horses within the inclosed portion of said streets in charge of small boys, who were unable to control them, and the plaintiff coming over said intersecting street upon Main street, in company with his wife and children in a two-horse carriage just at the time said horses were being run down the street, his carriage was struck by one of said horses and overturned, and he and his family thrown from said carriage upon the ground, by which fall plaintiff was injured; that said injury occurred without any fault on his part. Trial was had and resulted in a judgment for the defendants, and the cause brought here for review. This action was formerly before this court in the case of Marth v. City of Kingfisher et al., 22 Okla. 602, 98 P. 436, 18 L.R.A. (N. S.) 1238, and in that case it was held that the racing of wild and unbroken horses upon the streets of a city where great crowds are assembled, and where such horses are placed in charge of small boys who are unable to control them, is such a dangerous and illegal use of the streets as to render the person conducting such race liable to travelers upon the street who, without fault upon their part, receive injuries from one of the horses running against or over them. At the trial of the instant case, the plaintiff requested the court to instruct the jury as follows:

"The racing of * * * horses, some five or six in number; upon the streets of a city, where great crowds of people are assembled and where such horses are placed in charge of small boys who are unable to control them, is such a dangerous and illegal use of the streets as would render the person conducting such race liable to a traveler upon such street who, without fault on his part, receives injuries from one of the horses running against or over him."

¶2 This requested instruction is substantially the law as declared by this court in the former appeal. The refusal of this instruction is assigned as error. It is a well- established rule in this state that the law as declared in a former appeal, where there is no material difference in the evidence or question presented, is the law of the case during the subsequent trial or appeal. Harding v. Gillett et al., 25 Okla. 199, 107 P. 665; ...