Midland Valley R.R. Co. v. Barnes, Case Number: 21003
Citation | 162 Okla. 44,18 P.2d 1089,1933 OK 26 |
Decision Date | 24 January 1933 |
Docket Number | Case Number: 21003 |
Parties | MIDLAND VALLEY RAILROAD CO. v. BARNES et al. |
Court | Supreme Court of Oklahoma |
¶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.
¶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.
¶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:
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