Midland Valley R.R. Co. v. Barnes, Case Number: 21003

Citation162 Okla. 44,18 P.2d 1089,1933 OK 26
Decision Date24 January 1933
Docket NumberCase Number: 21003
PartiesMIDLAND VALLEY RAILROAD CO. v. BARNES et al.
CourtSupreme Court of Oklahoma
Syllabus

¶0 1. Appeal and Error--Waiver of Error in Overruling Demurrer to Evidence by Defendant Introducing Evidence.

An assignment of error in overruling a defendant's demurrer to the evidence of the plaintiff will not lie when the defendant did not stand upon the demurrer, but proceeded to introduce evidence in defense.

2. Negligence--Negligence and Contributory Negligence as Questions for Jury--Instructed Verdict for Defendant Properly Refused.

In a negligence case, where the evidence as to negligence of the defendant is such that the jurors may reasonably differ as to necessary inferences, the issue of negligence must be submitted to the jury; and when there is any dispute concerning the facts, the issue of contributory negligence of the plaintiff is, under article 23, sec. 6, of the Constitution, in all cases whatsoever a question of fact to be left at all times to the jury; and under these circumstances it is proper to deny a defendant's motion for an instructed verdict in its favor.

3. Same--Instruction on Burden of Proof.

Upon an issue of negligence in a civil case, an instruction to the jury that the party alleging negligence must establish his allegations, "to your satisfaction," "by a fair weight and preponderance of the evidence," imposes upon the party an unwarranted degree of proof, and ordinarily constitutes reversible error, at least unless the other instructions properly define the term "preponderance of the evidence" and required the jury to find the issue in favor of the party alleging negligence if they conclude that the evidence upon the issue preponderates in his favor.

4. Same--Appeal and Error -- Instruction Held Harmless.

Record examined, and held, that under section 319, C. O. S. 1921, the giving of said erroneous instructions did not affect the substantial rights of plaintiff in error in the instant case.

5. Trial--Requested Instruction Based on Erroneous Theory as to Law Properly Refused.

The requirement that the court instruct the jury upon issues raised by the parties, and upon the parties' theories of the case is applicable only to proper issues and to correct theories, and a requested instruction based upon an erroneous theory as to the law is properly refused.

6. Same--Refusal of Instruction Assuming as Matter of Law an Issue of Fact for Jury.

A requested instruction so framed as to require the court to assume as matter of law an issue of fact properly to be submitted to the jury, is properly refused.

7. Carriers--Action for Damages to Cattle Caused by Inadequate and Negligently Maintained Unloading Pens--Right of Plaintiffs to Reasonable Time to Remove Cattle to Their Adjacent Pasture.

A contention that because defendant's cattle pens open into the pasture of the plaintiffs, the plaintiffs for that reason are not entitled to a reasonable time in which to remove their cattle from the pens, but must drive them from the cars directly through the pens into the pasture, unsupported by argument, and unsupported by authorities, will not be considered.

Appeal from District Court, Osage County; Jesse J. Worten, Judge.

Action by E. B. Barnes, M. E. Barnes, and F. A. Barnes, copartners doing business under the style and firm name of Barnes Brothers, against the Midland Valley Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

O. E. Swan and James D. Gibson, for plaintiff in error.

Frank T. McCoy and John T. Craig, for defendants in error.

SWINDALL, J.

¶1 The plaintiffs sued to recover the value of cattle alleged to have died because of injures sustained by having been knocked down and trampled upon, alleging that this was caused by the negligence of the defendant in not having pens adequate in size and in permitting the pens to become dangerous in character because the soil had been washed away from rocks that were left exposed and slippery, and because a hole had been washed out and had become filled with mud and slush.

¶2 The defendant answered by a general denial, set up the terms and provisions of the contract with regard to care of the cattle, and pleaded contributory negligence on the part of the plaintiffs.

¶3 From a verdict and judgment for the plaintiffs the defendant has appealed, alleging numerous errors, among them being alleged error in overruling its demurrer to the plaintiffs' evidence, error in refusing to instruct the jury to return a verdict for the defendant, error in refusing to give other instructions requested by the defendant, and error in the instructions given to the jury.

(1) The error, if any, in overruling the demurrer to the evidence of the plaintiffs, was waived by the defendant going forward with its evidence. Local Building & Loan Ass'n v. Hudson-Houston Lbr. Co., 150 Okla. 44, 3 P.2d 156.
(2) We have carefully examined all of the evidence upon which the verdict was based, and upon neither issue, that of negligence of the defendant in the respects claimed, or that of negligence of the plaintiffs contributing to the harm, can we say that it was such that twelve men could not reasonably differ in their conclusions, so that we are forced to conclude that the issues of negligence other than contributory negligence were properly submitted to the jury and the issue of contributory negligence by the provisions of article 23, sec. 6, of the Constitution was required to be submitted to the jury; so that there was no error in denying the defendant's request for an instructed verdict. Oklahoma Civil Digest, vol. 4, Negligence, sec. 13, pp. 2159 et seq.; Complete Oklahoma Digest, Negligence, sec. 65. Oklahoma Constitution, art. 23, sec. 6.
(3) The defendant complains of the giving of the following instruction:
"The burden of proof is upon the defendant to establish to your satisfaction, by the fair weight and preponderance of the evidence, the allegations of contributory negligence."

¶4 The plaintiffs contend that whether this instruction was or was not correct, since the court gave the same instruction with regard to their burden of proving the defendant's negligence, the correctness of the instruction became immaterial. Unfortunately, we cannot so dispose of the question.

¶5 The instruction was objectionable. In the first place, all that is required in most issues in a civil case, among them the issue of negligence, is that the party upon whom the burden of proof is cast produce a preponderance of the evidence, which is such evidence as makes it more probable than otherwise that what are alleged to be facts are facts. If the party has produced evidence having this effect, he has sustained his burden, and he is entitled to a favorable holding upon the issue. It is immaterial whether the jurors or any of them are or are not satisfied that the facts actually are so. This court has again and again held that "in a civil case, all that the plaintiff is required to do in order to establish his case is to make it * * * more probable that the injury came in whole or in part from the defendant's negligence than from any other cause, and this fact may be established by circumstantial evidence and the reasonable inferences to be drawn therefrom." Missouri, K. & T. R. Co. v. Minor, 75 Okla. 10, 181 P. 142. What the jury is to be satisfied of is that the evidence does or does not preponderate, but they are not required to be satisfied that the more probable inferences agree with the real facts. One of the best expressions of this that we have found was given by Wilkes, J., in Endowment Bank of Order of K. P. v. Steele (Tenn.) 63 S.W. 1126, at page 1128, in the following language:

"* * * It is not required that the evidence shall be clear and plain or that it shall satisfy any reasonable man. The word 'satisfy' means 'to free from doubt, suspense, or uncertainty; to set the mind at rest.' Now, it is necessary that the jury should be satisfied that there is a preponderance one way or the other, but this does not mean, that it must be satisfied of the truth of the fact itself. Mr. Greenleaf, in his work on Evidence (vol. 1, sec. 2) says: 'By "satisfactory evidence," which is sometimes called "sufficient evidence," is intended that amount of proof which will ordinarily satisfy an unprejudiced mind beyond a reasonable doubt.' The law does not require that any theory or contention of either party in a civil suit shall be free from doubt, suspense, or uncertainty; that the evidence must set the minds of the jury at rest; that it must be clear and plain; that it must be established, in the usual acceptation of that term; but merely that the contention shall be supported and made out by a preponderance of the testimony, although the jury may nevertheless have some doubt or uncertainty, and their minds may not be at rest, and the fact may not be certainly fixed. A jury may consider that a fact is shown by a preponderance of the testimony when it falls short of making it clear and plain or removing doubt from their minds; but the rule is, if the evidence is of sufficient weight to preponderate in favor of any theory or contention, that, in a civil case, is sufficient. Now, the several charges in the case complained of, clearly lay down the rule that the evidence in the case must be of such a character, or so clear and plain, as to satisfy any reasonable man, and remove doubt from the minds of the jury. The true statement of the rule is that, if the evidence preponderates in favor of any contention of the plaintiff or defendant, that contention may by the jury be considered as sufficiently sustained to rest a verdict upon, and it is not necessary that the evidence should go so far as to make said contention clear and plain, or establish it, in a sense to make it free from doubt or uncertainty, or set the minds of the jury at rest, and convince them absolutely of the truth of the contention. After all the evidence
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