Missouri, O. & G. Ry. Co. v. Lee
| Decision Date | 01 October 1918 |
| Docket Number | 9267. |
| Citation | 175 P. 367,73 Okla. 165,1918 OK 551 |
| Parties | MISSOURI, O. & G. RY. CO. et al. v. LEE. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In an action by a surviving widow for damages sustained for the wrongful death of her husband, allegations in the petition that plaintiff has suffered great mental anguish by reason of his death, and for loss of his society, comfort, association love, and protection, should, upon proper motion, be stricken, as they are not proper items of damage on which to base a recovery.
In the trial of an action wherein a surviving widow is seeking to recover damages for the wrongful death of her husband, it is error to admit in evidence mortality tables to prove the expectancy of the surviving widow.
In an action by a widow to recover damages for the wrongful death of her husband, an instruction which directs the jury to take into consideration the means of the plaintiff in arriving at their verdict is erroneous for the reason that her right to recovery is based upon her pecuniary loss and does not depend on her financial condition.
Evidence examined in this case, and held not to warrant the giving of an instruction on the last clear chance.
Additional Syllabus by Editorial Staff.
The last clear chance doctrine recognizes primary negligence of plaintiff, but that such negligence has ceased, after which his condition of peril has been discovered by defendant, and notwithstanding the prior negligence of plaintiff, the defendant might, by the exercise of ordinary care, have refrained from inflicting any injury on plaintiff.
[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Last Clear Chance.]
Commissioners' Opinion, Division No. 2. Error from District Court, Wagoner County; Chas. G. Watts, Judge.
Action by Fannie Lee against the Missouri, Oklahoma & Gulf Railway Company and Alexander New and another, its receivers. Judgment for plaintiff, motion for new trial denied, and defendants bring error. Reversed and remanded for new trial.
Edward R. Jones and Ephriam H. Foster, both of Muskogee, and Arthur Miller, of Kansas City, Mo., for plaintiffs in error.
Watts & Summers, of Wagoner, for defendant in error.
The parties to this action will be referred to as they appeared in the district court of Wagoner county, Okl.; that is, Fannie Lee as plaintiff, and Missouri, Oklahoma & Gulf Railway Company and Alexander New and H. C. Ferris, receivers, as defendants.
This is an action instituted by Fannie Lee, as the surviving widow of Taylor Lee, deceased, to recover damages alleged to be due by reason of Taylor Lee having received injuries by being run over by a passenger train on the defendant's track, from which he shortly thereafter died. The petition sets forth that Fannie Lee and Taylor Lee were husband and wife, and that Taylor Lee was a man about 44 years of age, and was living at the time of his death in the city of Wagoner, Okl.; that the defendant is a corporation owning a line of railway running through the city of Wagoner, Okl., and that the defendants Alexander New and H. C. Ferris are the duly appointed, qualified, and acting receivers for said corporation, and as such receivers were in charge of and operating said road on the 21st day of February, 1916; that on the 21st day of February, 1916, Taylor Lee was going to the depot of the M., K. & T. Railway Company, and was crossing the track in Wagoner, Okl., of defendant, at the intersection of Cherokee street and defendant's road, and was run over and received injuries from which he thereafter died; that the proximate cause of the death of Taylor Lee was due to the negligence of the receivers in permitting a mechanical bell or signal to become out of working order, and by reason thereof that said bell was not working at the time that Taylor Lee attempted to cross the track, and that the agents, servants, and employees of the receivers were further negligent in permitting said train to become about two hours late, and that the agents, servants, and employees failed to ring the bell or blow the whistle of said engine or give warning, as required by law, of the approach of said engine and train of cars to said crossing; that by reason of the death of Taylor Lee this plaintiff has been damaged in the sum of $15,000; for all of which she prayed judgment against the defendants.
Alexander New and H. C. Ferris, as receivers of said corporation, filed an answer which consists of a general denial, and also pleaded contributory negligence on the part of said Taylor Lee, in that he neglected to use ordinary care when he went on said right of way. There was no service procured on the M., O. & G. Railway Company, and therefore no issue is presented as to said defendant. The evidence in this case shows that the track of the M., O. & G. Railway Company runs north and south through the town of Wagoner, and that the track of the M., K. & T. Railway Company runs north and south parallel to the track of defendant, a short distance west; that Cherokee street runs east and west through said town, and crosses the right of way of the defendant where this accident occurred. The depot of the M., K. & T. Railway Company is located just west and south of the intersection of the track of defendant and Cherokee street. On the night that the deceased met his death he was going to the depot of the M., K. & T. Railway Company for the purpose of assisting some of his relatives, who were intending to leave on the south-bound M., K. & T. Railroad. The M., K. & T. passenger train was due at Wagoner, Okl., about 8 or 8:30 o'clock that night. The south-bound passenger train of the defendant was due to arrive about 6 o'clock, but for some reason was about two hours late. Deceased, in going to the depot, was traveling along the south side of Cherokee street on the sidewalk, the sidewalk extending almost to the track of defendant's railroad. At the intersection of Cherokee street and defendant's railroad there had been established by defendant an electric bell for the purpose of giving warning of the approach of trains to those who desired to cross said track, and there was also established at that place an electric light.
The evidence discloses on the part of the witnesses for the plaintiff that about half a mile north of the place where the deceased met his death the passenger train of defendant blew its whistle and the headlight could be seen as the train approached. There were a number of witnesses who testified in this action, who were standing at the depot of the M., K. & T. Railway Company and watched the incoming train on the defendant's track. All of the witnesses testified, both for the plaintiff and defendants, that there was a whistle sounded, and most of them placed the distance north of the crossing at which it was sounded at about one-half mile; some placed it a little further and some nearer. There were only two eyewitnesses to the accident, one being W. H. McClain, fireman, for the defendants, and the other being A. C. Carter, a witness for the plaintiff. From the evidence of the witnesses who saw the accident it seems that the defendant was walking west, and when he reached the railroad crossing did not stop, but continued until he reached the track, at which place he was struck by the engine and killed. The cause was submitted to a jury, and a verdict for $5,000 damages was returned. A motion for new trial was filed and overruled, and from the action of the court in overruling this motion the defendants prosecute an appeal to this court.
There are numerous assignments of error, but we do not deem it necessary to set out in detail each assignment so made. There was a motion filed by the defendants to strike certain allegations from the petition of the plaintiff. That part of the petition against which the motion is leveled is as follows:
"She states that the said Taylor Lee, deceased, was 44 years of age at the time of his death as aforesaid; that he was a strong, vigorous, active, and healthy man, and would have lived and had a reasonable expectancy of many years; that as his wife she was entitled to the association, protection, society, comfort, love, and affection of her husband, all of which she was deprived of by said wrongful and negligent acts of said defendants aforesaid, and was caused and suffered great mental anguish by reason of said death and said deprivation."
This motion was duly considered by the court and overruled, to which action of the court the defendants excepted.
We are of the opinion that the court was in error in overruling the motion to strike that part of the petition complained of by the defendants, and particularly that part which alleges that plaintiff was caused and suffered great mental anguish by reason of his death, and for the loss of his society, comfort, association, love, protection, and affection. It is a well-settled principle of law in this jurisdiction that a recovery can be had by the surviving widow only for the pecuniary loss that she suffered by reason of the death of her husband. This being true, the foregoing allegations constitute not only surplusage, but are calculated to be highly prejudicial to the rights of the defendants.
This action was instituted under and by virtue of section 5281, R. L. 1910. Under this act the only recovery that could be had was for the pecuniary loss sustained by plaintiff by reason of the death of her husband. In the case of Smith et al. v. C., R. I. & P. Ry. Co., 42 Okl. 577, 142 P. 398, Commissioner Harrison states the measure of damages applicable to cases arising under this act as follows:
...
To continue reading
Request your trial