Midland Valley R.R. Co. v. Gibson
| Decision Date | 23 October 1923 |
| Docket Number | Case Number: 14304 |
| Parties | MIDLAND VALLEY RAILROAD CO. v. GIBSON. |
| Court | Oklahoma Supreme Court |
¶0 1. Negligence--Elements.
To constitute actionable negligence, where the alleged wrong is not willful and intentional, three essential elements are necessary: (1) The existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) failure of the defendant to perform that duty; and (3) injury to the plaintiff resulting from such failure.
2. Same--Question for Jury.
Negligence is the absence of care, according to the circumstances of each case, and is always a question for the jury, when there is a reasonable doubt as to the facts, or as to the inference to be drawn from them; i. e., where reasonable men may differ as to the existence thereof.
3. Trial--Directing Verdict.
Where the evidence is conflicting and the court is asked to direct a verdict, all facts and inferences in conflict with the evidence against which the action is to be taken must be eliminated entirely from consideration and totally disregarded, leaving for consideration that evidence only which is favorable to the party against whom the motion is leveled.
4. Damages--Instruction--Sufficiency.
An instruction, otherwise correct as to the measure of damages and the elements to be considered in the assessment thereof, is not erroneous for failure to tell the jury their verdict must be based upon the evidence, where in the general charge this direction is given.
5. Same -- Instruction on Weight of Evidence.
A jury cannot be instructed to wholly disregard the admissible opinions of expert witnesses, nor that no reliance is to be placed on or aid gained from the same; but it is not error to instruct them that they may disregard such evidence if they deem it unreasonable or not entitled to belief because of other and contradicting evidence from witnesses claiming positive knowledge.
6. Appeal and Error -- Record of Evidence--Omission of Exhibits.
When the case-made contained a statement that all of the evidence introduced upon the trial is contained therein, but the record itself shows upon its face that it does not, and that material written instruments were omitted therefrom, the record is the best evidence, and will prevail over such statement. The same rule applies to photographs, plats, maps, or instruments of any kind, and where such exhibits are omitted from the evidence, it will not be considered.
7. Trial--Refused Instructions Covered in Charge.
Where it appears that instructions tendered by attorneys and refused by the trial court were in substance and effect given by the trial court in its final instructions to the jury, the refusal to give instructions asked for does not constitute reversible error.
O. E. Swan, J. H. Maxey, and Christy Russell, for plaintiff in error.
J. S. Springer and E. G. Wilson, for defendant in error.
¶1 This action was commenced on the 4th day of February, 1921, by defendant in error filing her petition against the plaintiff in error, the Midland Valley Railway Company, a corporation, in the district court of Tulsa county, Okla., to recover damages for personal injury, and on the 24th day of May, 1921, defendant in error filed her amended petition in said court. Parties will be hereafter referred to as plaintiff and defendant, as they appeared in the lower court. Plaintiff alleges in her amended petition, in substance, that on the 8th day of November, 1920, she went to the wareroom of defendant by invitation of the agent of said company to identify a shipment of books, and that while she and the agent were counting the books another agent, or employe, of said company negligently, wantonly, and in gross disregard of the life and safety of the plaintiff, raised and displaced, managed and handled a heavy hogshead, throwing the said hogshead with great force and violence upon the plaintiff, thereby crushing and mangling her left foot, and crushing and breaking the bones of said foot, and permanently injuring and crippling her, and as a result thereof her foot became and remained enlarged, rendering her incapable of wearing the same size shoe on the injured foot that she wears on the other foot, and that said injury rendered her unable to work or transact her business; that she suffered and still suffers great pain of body and anguish of mind, and claims damages; that she has expended, for hospital fees and medical treatment, the sum of $ 250; that three years before she had been engaged in teaching music and dancing, but for the past three years she was engaged as general agent for sale of books, and salesmanship teacher, with headquarters at Chicago, Ill.; that, at the time of said injury herein complained of, she was earning, and that her earning capacity was, $ 5,000 per annum; that the injury complained of rendered her unable to perform the duties, either as teacher or general agent, and that she still remains so incapacitated, and is permanently crippled and disabled, and concludes the petition with a prayer for $ 10,000 damages and costs. The answer of defendant is a general denial and a plea of contributory negligence on part of the plaintiff. Upon these issues the cause proceeded to trial before a jury, on the 19th day of December, 1922, resulting in a verdict in favor of the plaintiff for $ 1,500, and after a motion for a new trial was filed and overruled and exceptions reserved, the court, on the 8th day of January, 1923, pronounced judgment upon the verdict of the jury for the amount of $ 1,500, and the cause comes regularly upon appeal by the defendant to this court from said judgment. The attorneys for defendant in their brief set up six specifications of error, as follows:
¶2 In view of the assignments of error set up in brief of defendant, it will be necessary to review somewhat in detail the testimony in this case. The plaintiff testified, in substance, that this injury occurred on the 8th day of November, 1920, and that she did not commence work regularly thereafter until March 14, 1921; that she was confined in the hospital, under treatment, for several days and afterwards taken to her home where she was confined for several weeks, under a doctor's care, after which she went around on crutches until about the 7th day of January, 1921; that three of her toes, at least, were broken, all of the nails on the crushed foot were mashed off; that the foot was badly swollen and discolored, and that she suffered great bodily pain and mental anguish from the injury, and on the proposition whether the injury was permanent or not she testified that the injured foot was enlarged, so that she had to wear a shoe one size larger than she had to wear on the other foot; that even yet, at the time of the trial, which was over two years after the injury was sustained, her foot still hurt her regularly at all times; that she can not sleep well; that if she stepped on the sidewalk with the injured foot and did not get all the injured foot on the sidewalk she was sure to fall because all her toes were weak. She further testified, in regard to how the accident occurred, that she was standing next to the hogshead, which crushed her foot, counting her books, and that Vaught, the agent of the company, was about one foot from the hogshead, and that he pulled something out from under the hogshead, letting the hogshead drop on her foot, and he stepped away five or six feet, having in his hands a truck by both handles, the truck having a nose under it, which is used to insert under a bale, barrel, or bundle, and gave as her opinion that this was what he pulled out from under the hogshead. Upon cross-examination by defendants counsel she was asked these questions with reference to where Vaught was standing:
¶3 And she further testified:
(Mr. Mason, referred to, is the agent who went with plaintiff to identify the consignment of books, and Mr. Vaught, referred to, is the checking clerk of the defendant, as is disclosed by the evidence.)
¶4 The plaintiff further testified as to her earning capacity and her loss from being incapacitated by reason of the injury, from looking after the business in which she was employed. Dr. Flynn, witness for plaintiff, testified that he attended on the plaintiff, and that he found her suffering from three broken toes; that he X-rayed the foot and found broken toes and broken bones; that her foot was swollen, and that her toes and foot were bruised, and that the injury was necessarily painful; and gave as his opinion that it would take an injury of this character three or four weeks to heal, and that the injured condition, or sensitive condition, of the toes would, in his judgment, last about two months; that it was pretty hard to say and that there was necessarily a great deal of mental and physical pain connected with an injury of that kind. The X-ray picture was...
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