Missouri, O. & G. Ry. Co. v. Miller
| Decision Date | 05 January 1915 |
| Docket Number | 4348. |
| Citation | 145 P. 367,45 Okla. 173,1915 OK 3 |
| Parties | MISSOURI, O. & G. RY. CO. v. MILLER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Plaintiff was employed by defendant as storekeeper in the city of Muskogee. The storeroom was three-quarters of a mile from the Union depot. The trains in reaching the depot were required to enter over a Y, passing by the storeroom. Plaintiff testified he was ordered by his superior officer to board passenger train No. 1, for the purpose of going to the depot after some rubber hose; that, in attempting to board the train as it was passing his office at the rate of from 6 to 8 miles per hour, his left foot came in contact with a pile of coal which defendant had piled within six inches of the track, and he was thrown under the train and injured; that he did not know the coal was there until he stumbled over it and fell; that had the surface of the ground been smooth there would have been no danger in boarding said train. Defendant moved for a directed verdict. Held, there was sufficient evidence to warrant the submission of the question of defendant's negligence to the jury.
Defendant was charged with a specific act of negligence in placing a pile of coal in such proximity to the track where plaintiff might reasonably be expected to board defendant's train as to make the place dangerous in boarding its train. Held, that the rule giving defendant a reasonable time in which to remedy the defect or to remove the obstruction has no application.
Plaintiff's principal duties as storekeeper were to receive and look after all supplies used by defendant on its trains; to keep an account of same. His duty in looking after the grounds in front of the storeroom and adjacent to the track was incidental to his principal duties. Held, that the facts do not bring the case within the exception to the rule where a servant is engaged in making a reasonably safe place dangerous, or in making an obviously dangerous place safe. Held, further, that the question of plaintiff's contributory negligence, under all the facts and circumstances, was a question of fact to be determined by the jury.
Plaintiff alleged and testified that he was ordered by his superior to board the train at the time, place, and in the manner in which he attempted to board same. Defendant admitted piling the coal near the track a short time before the accident. Plaintiff claimed to have had no knowledge of said coal until he was injured. Held, the question of approximate cause of the injury was an issue of fact to be determined by the jury.
A question was propounded to the witness Kiersey, who qualified as an expert, as follows: "Suppose the surface was smooth along the track and the passenger coach should be coming along, an ordinary passenger coach, going at the rate of six to eight miles an hour, to an experienced man in catching moving trains, would there be any danger incident to the catching of the same?" Answer: To this question defendant objected, upon the ground that it was not a proper subject for expert testimony. Held, not error. Held, further, if error, it was harmless, in that plaintiff testified to the same effect, without objection, which testimony is not controverted.
Complaint is made to paragraphs 4, 5. and 8 of the court's instructions to the jury. Held, upon an examination of said instructions in connection with the whole charge of the court, we find that the law applicable to the facts was fairly given to the jury.
Defendant complained of the action of the court in refusing to submit to the jury special requested instructions Nos. 3, 7, and 9. Held, that the court fairly gave to the jury the law applicable to the issues made by the pleadings and the evidence, and substantially included in its charge requested instructions Nos. 3 and 9; and that requested instruction No 7 is not a correct statement of the law.
Additional Syllabus by Editorial Staff.
Strictly defined, an act is the "proximate cause" of an event, when in the natural order of things and under the particular circumstances surrounding it such an act would necessarily produce that event; but the practical construction of "proximate cause" by the courts is a cause from which a man of ordinary experience and sagacity could foresee that the result might probably ensue.
Error from District Court, Pontotoc County; Tom D. McKeown, Judge.
Action by W. E. Miller against the Missouri, Oklahoma & Gulf Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.
E. R Jones and J. C. Wilhoit, both of Muskogee (Arthur Miller, of Kansas City, Mo., of counsel), for plaintiff in error.
W. N. Maben, of Shawnee, and C. A. Galbraith, of Oklahoma City, for defendant in error.
The parties will be referred to here as they were in the trial court. Plaintiff alleges substantially that he was employed by defendant as storekeper in the city of Muskogee; that it was his duty to collect, take charge of, and distribute the supplies used by defendant on its train, and to go from the storeroom to the depot and receipt for all supplies; that, as part of his contract of employment, defendant was to furnish plaintiff with transportation for himself and supplies from the storeroom to the depot, a distance of about three-quarters of a mile; that defendant operated a passenger train which it would back over a Y, passing the storeroom; that plaintiff was directed to board said train by defendant's superior officer, who had authority to give such instructions, to use said passenger train as a means of transportation of himself and supplies; that the employés in charge of said train were in the habit of slowing up the speed at the rate of about 6 miles per hour, for the purpose of permitting plaintiff and the other enployés to board same; that on the date of the accident one H. P. Abbey, purchasing agent for defendant, and who was plaintiff's foreman and superior, having authority, directed plaintiff to catch said train as the same passed the storeroom about the hour of 10:30 a. m. for the purpose of going to the passenger depot after a steam hose, and to bring the same back when the train returned; that said agents and servants aforesaid caused a large pile of coal to be placed near said storeroom, but that in so doing its said servants and employés negligently and carelessly placed the same within about 6 inches of the railway track where said passenger train had to pass; that all said acts of defendant, its agents and servants, were known to said defendant, but were unknown to plaintiff; that the placing of said coal in such close proximity to said track rendered said place unsafe for plaintiff and said employés; that the ground was smooth along near said storeroom where said passenger train passed, and when said train approached said storeroom, going in the direction of the passenger depot, plaintiff stepped out near by to catch said train, upon the order of his said superior, and used due care and caution for his own personal safety; that there was no danger in attempting to board said train at said time, but for the negligence of said defendant, its agents and servants, in causing said pile of coal to be placed at said point, of all of which acts of negligence plaintiff was ignorant, and could not by the exercise of ordinary care and diligence have discovered same; that plaintiff, before catching said train and before placing his foot on the step, and while in the act of placing his right foot on the step on said passenger coach, his left foot and leg came in contact with said pile of coal, causing his foot to slip and be caught by the wheels of said train and run over, the injury causing the amputation of his foot, as aforesaid. He prayed for judgment for the sum of $20,000. Defendant filed its answer, consisting of a general denial and pleading contributory negligence; specially alleging that plaintiff's duty did not require him to board moving trains for the purpose of reaching the depot, and that it did not owe plaintiff the duty of keeping said right of way free from obstructions, and was not required to anticipate that the place where the coal was put would be used by defendant in error, or any other person, as a place to board moving passenger trains. To this answer, plaintiff filed a reply. A trial was had to a jury, resulting in a verdict and judgment in favor of plaintiff for the sum of $5,000, from which judgment defendant prosecutes this appeal.
Defendant presents and argues the following assignments:
The testimony of plaintiff tends to support all the material allegations of his petition; while the testimony on the part of defendant contradicts that of plaintiff and tends to support the theory of defendant. Defendant insists that the court erred in refusing to give a peremptory instruction. Counsel assign and argue four reasons why the action of the court is error. The first...
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