Midland Valley R. Co. v. Neeley

• Decision Date: 15 September 1925
• Docket Number: Case Number: 15606
• Citation: 1925 OK 708,114 Okla. 277,246 P. 859
• Parties: MIDLAND VALLEY R. CO. v. NEELEY.
• Court: Oklahoma Supreme Court

1925 OK 708

246 P. 859

114 Okla. 277

MIDLAND VALLEY R. CO. v. NEELEY.

Case Number: 15606

Supreme Court of Oklahoma

Decided: September 15, 1925

Syllabus

¶0 1. Trial--Directing Verdict--When Properly Refused.

A motion to direct a verdict admits all the facts and inferences to be drawn from the evidence in favor of the party against whom it is directed and leaves for consideration only such evidence as is favorable to the party against whom such motion is directed; and where there is evidence in the record sufficient to support a judgment for the plaintiff, it is not error to refuse a requested instruction of the defendant for a directed verdict.

2. Negligence--Doctrine of Last Clear Chance.

The doctrine of "last clear chance" is recognized by the courts as an exception to the general rule that the contributory negligence of the person injured will bar a recovery, without reference to the degree of negligence on his part; and, under this exception to the rule, the injured person may recover damages for an injury resulting from the negligence of the defendant, although the negligence of the injured person exposed him to the danger of the injury sustained, if the injury was more immediately caused by the want of care, on the defendant's part, to avoid the injury, after discovering the peril of the injured person.

3. Trial--Sufficiency of Instructions -- Refusal of Requests.

Where, on the whole, the instructions given substantially and correctly cover all questions of law necessary to fairly present the case to the jury, it is not error to refuse instructions requested by one of the parties, although they may state the law correctly.

Error from District Court, LeFlore County; E. F. Lester, Judge.

Action by R. L. Neeley against Midland Valley Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

O. E. Swan, Varner & Taylor, and Blakeney & Ambrister, for plaintiff in error.

C. C. Williams and C. S. Neal, for defendant in error.

PHELPS, J.

¶1 This case comes to us on appeal from the district court of LeFlore county, defendant in error, who was plaintiff below, filing his petition in that court alleging, in substance, that on the 28th day of July, 1923 while driving his automobile north across the railway tracks running east and west of plaintiff in error, defendant below, near the town of Tahona, because of the negligence of defendant in running its train at a high and dangerous rate of speed and failing to give a warning of the approach of said train by either ringing a bell or sounding a whistle, plaintiff was struck by said train and sustained personal injuries, also sustained injuries to his automobile, for which injuries and damage he prayed judgment.

¶2 Defendant answered by general denial and pleaded contributory negligence of plaintiff and upon the issues thus joined the case was tried before a jury, resulting in a verdict for plaintiff for $ 396.10 as damages to his automobile and $ 500 for personal injuries, and from the judgment rendered upon such verdict and the order of the trial court refusing to grant a new trial, defendant prosecutes this appeal.

¶3 For convenience the parties will be referred to herein as they appeared in the district court. In defendant's specification of error No. 1, it contends that the trial court erred in refusing to instruct the jury to return a verdict for the defendant. This assignment of error is clearly without merit. A number of witnesses testified positively that the bell was not rung nor the whistle sounded as the train approached the crossing, and a number of witnesses testified that the approach of a train could not be observed from the highway until the traveler was almost upon the railroad track. Plaintiff himself testified as did the two other occupants of the automobile that no alarm of the approach of the train was given; they also testified that when about 50 feet from the railroad crossing the automobile was brought almost to a stop and they looked towards the east in an effort to discover the approach of the train, but owing to the obstructions no train was visible; that plaintiff then proceeded towards the crossing, and when some ten or fifteen feet from the crossing he arrived at a place where he could see the approaching train; he then threw on his brakes and attempted to stop the automobile, but being on a down-hill grade he saw it was impossible to stop the automobile until it was upon the track in front of the train; he then released his brakes, put on the gas, and attempted to cross the track before the arrival of the train. The evidence regarding these matters was decidedly conflicting, but as there was positive evidence of the primary negligence of defendant, it was clearly a question for the jury to decide. A motion to direct a verdict admits all the facts and inferences to be drawn from the evidence in favor of the party against whom it is directed and leaves for consideration only such evidence as is favorable to the party against whom such motion is directed; and, where there is evidence in the record sufficient to support a judgment for the plaintiff, it is not error to...