Syllabus
by the Court.
The
doctrine of "comparative negligence" does not
obtain in this state.
It is
error for the court to instruct the jury that under the
statute it was the duty of the railroad company to ring the
bell "and" blow the whistle of the engine 80 rods
from the crossing; but where it was evident, even though so
instructed, that the jury was not misled thereby, nor any of
the rights of the defendant prejudiced thereby, it will be
held to be harmless and not reversible error.
Where
it is evident that plaintiff has introduced evidence to
support his theory of the case, it is not error for the
court, after telling the jury what plaintiff's theory of
the case is, to then tell them that he has introduced
evidence to support it.
It is
the duty of the court to instruct upon the doctrine of
"last clear chance," even though not raised by the
pleadings, when it is raised by evidence admitted during the
course of the trial.
Evidence
examined, and held, that the doctrine of "last
clear chance" was raised thereby and properly submitted
to the jury.
A
verdict for $10,000 held to be grossly excessive.
Commissioners'
Opinion, Division No. 4. Error from District Court, Hughes
County; John Caruthers, Judge.
Action
by George R. Parker against the Missouri, Oklahoma & Gulf
Railway Company. There was a judgment for plaintiff, and
defendant brings error. Affirmed conditionally on remission
of part of the recovery.
MATHEWS
C.
1. This
is an action for damages for personal injuries alleged to
have been sustained by defendant in error on account of the
negligence of plaintiff in error in the operation of its
engine on its road at a public crossing in the town of
Calvin, Hughes county. The plaintiff in error answered the
petition of defendant in error by a general denial and the
affirmative plea of contributory negligence. At the trial
the jury returned a verdict for defendant in error for
$14,000 a remittance of $4,000 was ordered by the court, and,
the same having been done, the motion for a new trial was
overruled, and the plaintiff in error brings the case here on
appeal. The parties will be designated as in the trial court.
The
defendant does not complain of the sufficiency of the
petition, nor of any ruling of the court upon the admission
of testimony, but reserved exceptions to a large number of
the court's instructions, and also excepted to the
court's refusal to give a number of instructions offered
by the defendant, and also urges that the verdict was
excessive.
2.
Instruction No. 1 is as follows:
"The court instructs you, gentlemen of the jury, that
the mere fact that the plaintiff has been injured on the
street crossing in the town of Calvin by an approaching
switch engine of the defendant company would not of itself
entitle plaintiff to recover, nor show negligence on the part
of the defendant company; but the plaintiff must go further
and show by a fair preponderance of the evidence every
material allegation of his petition, and that his injuries,
if any were caused by the defendant's negligence in the
operation of the switch engine along the public thoroughfare,
in failing to give proper signal, and in running at an
unusual rate of speed, and as the direct, approximate result
of the defendant's negligence in the operation of said
engine, plaintiff was hurt, and that said hurt was not the
result of the plaintiff's own carelessness and negligence
in failing to use due caution and care on its own part to
stop, look, and listen for the approaching engine, and the
burden is also upon the plaintiff to show by competent
evidence where he has been injured and the
extent thereof in order that the jury may intelligently
assess his damages if they find plaintiff is entitled to
prevail.
By a 'fair preponderance of the evidence' the court
does not mean necessarily the largest number of witnesses who
may have testified in the case as to any given controverted
fact, but that greater weight of the evidence, which, after a
full and candid consideration of all the evidence, satisfies
and convinces your judgment of the truth of the
plaintiff's contention."
We
think this instruction correctly states the law and cannot
find that it assumes that plaintiff has been injured, as
complains defendant, or that there appears therein any
assumption that defendant was negligent in the operation of
its switch engine; but the intent of this instruction was to
inform the jury where the burden of proof lay and the extent
thereof.
3.
Instruction No. 2 is as follows:
"The court further instructs you that the plaintiff and
the defendant both had a right to use the streets in the town
of Calvin where the accident is alleged to have happened. It
was likewise the duty of both to exercise reasonable care to
avoid the collision, but it was not the duty of the defendant
to exercise a higher degree of care than the plaintiff, nor
was it the duty of the plaintiff to exercise a higher degree
of care than the defendant. It was the duty of each, acting
in his own place, under the circumstances surrounding
each--that is, plaintiff and the defendant's employés in
charge of the switch engine--to exercise that degree of care
to avoid any accident which a reasonably prudent person would
have exercised under the circumstances. If defendant's
negligence is the proximate cause of the injuries, then it is
liable for damages. If the plaintiff's negligence
and the defendant's negligence are equal, it cannot be
said that the defendant's negligence is the proximate
cause, and therefore the plaintiff would not be entitled to
recover. And in this case, if the plaintiff and the
defendant's employés in charge of the engine, with equal
negligence, approached each other on the highway and an
injury resulted to the plaintiff from the collision, then
there can be no recovery for the reason it cannot be said
that the negligence of either is the proximate cause of the
injuries of the other.
It is the plaintiff's theory in this case, in support of
which he has offered evidence, that he was going to the Rock
Island Railroad depot, and that before going upon the track
of defendant's railroad he stopped and looked and
listened, and that because of the obstruction of a high bank
on the east side of the street he could not see the
approaching engine as it was backing west; that he never
heard the whistle blow or the bell ring; that in the exercise
of due care and caution he proceeded to cross the track, and
while doing so, because of the failure of the defendant's
agents and employés to give any signal of the approaching
engine, and to exercise ordinary care to avoid collision, his
wagon was struck and he was knocked or thrown out of the same
or forced to jump therefrom; and that at the time
defendant's engine struck the wagon in which he was
riding and caused the injuries he complains of.
If you find by a fair preponderance of the evidence that this
contention is true, and that as a result of the failure of
the engineer to ring the bell and sound the whistle before
crossing the street, and to apply the emergency brakes after
plaintiff was discovered by the engineer, or apprised of the
fact of his presence by his brakeman or other employés, in
time to stop the train, provided that in the exercise of
ordinary care and caution the defendant could have stopped
the train and prevented the accident, and but for which
negligence on the part of the defendant's employés the
accident would not have happened, and you further find that
the plaintiff's injuries were not due to his own lack of
care in seeking to avoid the collision with the train by
first stopping, looking, and listening before going upon the
track, then you should find for the plaintiff."
Defendant
complains that this instruction is too comprehensive, and
insists that the court therein attempts to cover the law
relative to the negligence of the defendant, contributory
negligence, comparative negligence, and the doctrine of last
clear chance, and also to state the theory of the case from
the plaintiff's side.
The
practice of embracing several subjects in the same paragraph
of the charge is not to be commended, and the best procedure
is not to mix different propositions in the same paragraph
unless closely related; but this is a question of taste only,
and error cannot be predicated thereon.
But the
prime complaint raised against this part of the instruction,
which presents the most difficult question in the case, is
the contention that the court therein gives an instruction on
the doctrine of comparative negligence. That part of the
instruction so complained of is as follows:
"The court further instructs you that the plaintiff and
the defendant both had a right to use the streets in the town
of Calvin where the accident is alleged to have happened. It
was likewise the duty of both to exercise reasonable care to
avoid the collision, but it was not the duty of the defendant
to exercise a higher degree of care than the plaintiff, nor
was it the duty of the plaintiff to exercise a higher degree
of care than the defendant. It was the duty of each, acting
in his own place, under the circumstances surrounding
each--that is, plaintiff and the defendant's employés in
charge of the switch engine--to exercise that degree of care
to avoid any accident which a reasonably prudent person would
have exercised under the circumstances. If defendant's
negligence is the
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