Missouri, K. & T. Ry. Co. v. Lenahan
| Decision Date | 11 December 1917 |
| Docket Number | 7133. |
| Parties | MISSOURI, K. & T. RY. CO. v. LENAHAN. |
| Court | Oklahoma Supreme Court |
Rehearing Denied March 19, 1918.
Syllabus by the Court.
A judgment for the plaintiff in an action for damages for wrongful death cognizable under the federal Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]), commenced by the widow of the deceased in her personal capacity, was reversed by the Supreme Court of the state upon the ground that the plaintiff could not, although sole beneficiary, maintain the action except as personal representative, such reversal being without prejudice to such rights as the personal representative might have. Held, not error for the trial court upon remand to allow the petition to be amended by joining the widow as personal representative of the deceased, as party plaintiff, without in any way enlarging or modifying the facts upon which the action was based. Held, further, that such amendment of the petition is not equivalent to the commencement of a new action, for the purpose of applying the two-year limitation provided by the statute.
In an action for damages for wrongful death commenced by the personal representative of a deceased employé under the federal Employers' Liability Act, it was alleged, in substance, that the death of the deceased was caused by a head-on collision between a south-bound passenger train drawn by an engine of which one H. was engineer, and a north-bound freight train, drawn by an engine of which one L., the deceased, was engineer; that engineer H. wholly failed, after discovering that said freight train was so approaching, to get his train under control, but kept running in the direction of the train operated by said L. at a high and dangerous rate of speed; that said engineer H. actually discovered the condition of the train being pulled by said L in ample time to have avoided the collision, but that said engineer H. took no steps to avoid the same, but allowed the train operated by him to violently collide with the engine said L. was running in such a way as to cause the instant death of the latter. The evidence, which upon this point was in no material part conflicting, disclosed that at the time of the collision, the passenger train, which had the right of way over the freight train, was proceeding south 40 minutes late, pursuant to orders to that effect previously received, and that the freight train was proceeding north on the time of the passenger train in disregard of orders previously received by it and the well-known rules of the railway company. Held, that the duty of engineer H. to engineer L., the deceased, did not begin until he actually discovered the peril of L. Held, further, that notwithstanding the negligence of L. the railway company would be liable if it appeared that engineer H., after discovering the peril of L., did not use such precaution as an ordinarily prudent person would use under like circumstances to avoid the collision.
Before the question of contributory negligence on the part of the plaintiff can arise, primary negligence on the part of the defendant must be shown.
Record examined, and held that instructions Nos. 12, 16, 17, given by the court, are erroneous and misleading, for the reasons pointed out in the opinion.
Under the well-known rules of the railway company, the deceased, L., the engineer of the freight train, was equally responsible with his conductor for the safety of their train, and it was error to refuse to instruct the jury to that effect upon the request of the defendant.
This being an action for damages for wrongful death arising under the federal Employers' Liability Act, section 6, art. 23, Williams' Constitution, which changes the common-law rule as to assumption of risk and contributory negligence, is inapplicable.
After an examination of the entire record, it appears that the errors complained of, and herein pointed out, have probably resulted in a miscarriage of justice.
Error from District Court, Craig County; Preston S. Davis, Judge.
Action by Etta Lenahan, and Etta Lenahan as administratrix of estate of James Lenahan, deceased, against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error. Reversed, and cause remanded for a new trial.
Clifford L. Jackson, W. R. Allen, and M. D. Green, all of Muskogee, for plaintiff in error.
Edw. H. Brady and W. H. Kornegay, both of Vinita, for defendant in error.
This action was originally commenced in the district court of Craig county by Etta Lenahan in her individual capacity, for the purpose of recovering damages against the plaintiff in error herein for the wrongful death of her husband, James Lenahan. The action as thus commenced was subsequently tried, and resulted in a verdict in favor of the plaintiff in the sum of $15,000. Upon appeal this judgment was reversed, upon the ground that the widow of a deceased railroad employé cannot prosecute in her own name the action for damages given by the Employers' Liability Act of April 22, 1908, "to his or her personal representative for the benefit of the surviving widow or husband and children of such employé." M., K. & T. Ry. Co. v. Etta Lenahan, 39 Okl. 283, 135 P. 383. The Supreme Court, however, upheld the right of the plaintiff to so amend the petition in the trial court as to permit the action to be prosecuted in the name of the personal representative of the deceased for the benefit of the surviving widow, there being no children. Upon the cause being remanded to the trial court, counsel for the plaintiff amended her petition in pursuance of their understanding of the mandate of the Supreme Court, by adding to the title of the cause the name of "Etta Lenahan, Administratrix of the Estate of James Lenahan, Deceased," as party plaintiff; she in the meantime having been duly appointed such administratrix. Upon the petition being thus amended, issues were joined substantially as in the former trial, and the cause was again tried to a jury, and resulted in a verdict "in favor of the plaintiffs" in the sum of $20,000, upon which judgment was duly entered, to reverse which this proceeding in error was commenced.
As a full and complete statement of the pleadings and the issues involved may be found in the opinion formerly handed down, we will not undertake to restate them here, nor to review any of the questions of law that were then passed upon, except in so far as we may find it necessary to a clear understanding of the questions for review growing out of the new trial.
The death of engineer Lenahan was caused by a head-on collision between a south-bound passenger train, known as the "Katy Flyer," drawn by an engine of which one Hotchkiss was engineer, and a north-bound freight train, of which the decedent, Lenahan, was engineer. The specific act of negligence relied upon for a recovery may be summarized substantially as follows: That said engineer Hotchkiss wholly failed, after discovering that said freight train was so approaching, to get his train under control, but kept running in the direction of the train operated by said Lenahan at a high and dangerous rate of speed; that said engineer Hotchkiss actually discovered the condition of the train being pulled by said Lenahan in ample time to have avoided the collision, but that said engineer took no steps to avoid the same, but allowed the train operated by him to violently collide with the train that said Lenahan was running in such a way as to cause the instant death of the latter; that said Lenahan used all precaution to avoid said collision, and he also used all necessary precaution to avoid being hurt, and that said collision occurred by reason of the fact that the engineer on the passenger train took no steps to get his train under control after discovering the approach of the engine on which said Lenahan was engineer.
The defense of the railway company was, in brief, that the Flyer was proceeding south 40 minutes late, pursuant to orders to that effect previously received, and that the freight train was proceeding north upon the time of the Flyer in disregard of orders previously received by it; that, the collision being caused by this act of negligence and disobedience of orders on the part of Lenahan, his administratrix was not entitled to recover. Counsel for plaintiff in error state their grounds for reversal in their brief as follows: (1) The defendant in error, Etta Lenahan, is not the proper party to maintain this suit in her individual capacity. (2) The injuries for which the defendants in error are seeking damages were not due to any negligence on the part of the plaintiff in error, but were due solely to the independent negligence of the deceased, James Lenahan. (3) The trial court erred in refusing to instruct the jury to return a verdict in favor of the plaintiff in error, and in denying to the plaintiff in error a new trial. (4) The trial court should have instructed the jury that it was the duty of engineer Lenahan to obey the rules and orders of the company. (5) The doctrine of the last clear chance is not properly involved in this case. (6) The trial court erred in admitting opinion evidence as to within what space a train could be stopped and the space within which other trains had been stopped. (7) The court should have given the requested instructions on the question of proximate cause. (8) The court erred in refusing to give to the jury requested instruction No. 24. (9) The instruction given by the court touching the diminution of damages was erroneous and prejudicial to the plaintiff in error. (10) The provisions of our state Constitution, changing the common law as to...
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