Mo., O. & G. Ry. Co. v. Collins
| Decision Date | 01 June 1915 |
| Docket Number | Case Number: 4862 |
| Citation | 1915 OK 387,47 Okla. 761,150 P. 142 |
| Court | Oklahoma Supreme Court |
| Parties | MISSOURI, O. & G. RY. CO. v. COLLINS. |
¶0 1. TRIAL--Reception of Evidence--Waiver of Objection. When objection is made to the admissibility of certain testimony, but by agreement the answer is permitted to be made, to be excluded later if found to be incompetent, the party objecting waives his objection by failing to ask for the ruling thus reserved.
2. DAMAGES--Petition-- Impairment of Earning Capacity. A petition in an action for damages for personal injuries, charging that plaintiff was injured in his back, legs, spine, and arm, by reason of which he was caused "great pain and injury," that his injuries "were serious, caused him great inconvenience, loss of time, pain, and mental anguish, that he was caused to spend large sums of money and go through almost unbearable pain," and that "his injuries are permanent," is sufficient to admit proof of the impairment of the plaintiff's capacity to perform labor as an element of damage.
3. DAMAGES -- Evidence -- Medical Charges -- Reasonableness. Where the attending physician testified to the amount of his bill for medical treatment rendered plaintiff, and that his charges were reasonable, it is sufficient to submit the item of recovery to the jury. If defendant desired to put in issue the reasonableness of the charge, it should have introduced evidence for that purpose,
4. APPEAL AND ERROR--Harmless Error--Admission of Evidence--Cure by Verdict. Where, over objection, the plaintiff was permitted to testify to the value of his services to himself and family, and where the value of plaintiff's time was an issue, and the court properly charged the jury as to the item of loss of time occasioned by the immediate effect of the injury, while the question complained of was improper, yet, not being of a character that tended to create sympathy for the party offering it, or to prejudice the jury against the opposite party, and the verdict returned being fully warranted by the legitimate evidence, the judgment will not be disturbed.
5. SAME. The improper admission of evidence, if not prejudicial to the party complaining, is not ground for reversal.
6. RAILROADS--Injuries to Licensees-- Instructions--Applicability to Pleadings. Instructions 1, 3, and 4 examined in connection with the allegations of negligence charged in the petition, and found not subject to the objection that they include other and different acts of negligence than those charged in the petition.
7. TRIAL-- Instructions--Construction as a Whole. Instructions are to be considered and construed together as a whole, and, if not erroneous when so construed, no one of them will be held erroneous.
8. APPEAL AND ERROR -- Questions Presented for Review--Variance--Failure to Object. Though there be a variance between the allegations of a petition and the facts proven without objection at the trial, yet, if it be a case where an amendment to conform to the proof should have been allowed, the judgment will not be reversed solely because of such variance.
9. RAILROADS--Injuries to Licensees--Unloading Cars. Where a railroad company places a loaded car upon a side track, to be there unloaded by the owner of the freight, and an employee of the owner, with the express or implied consent of the company, proceeds to unload such freight, the company is without right, without special notice or warning, to move a train in upon said side track in such a manner as to strike the car in which the employee is at work. Such employee, so engaged, may give his undivided attention to his work, and will be justified in assuming that the company will not molest him, and render his position hazardous, without such notice or warning.
10. SAME--Duty to Warn. Under such circumstances, it is the duty of the railway company, possessed of knowledge or the means of knowledge that the freight is being unloaded, to properly warn or notify the person so engaged of an intention to switch or set cars on said side track, if in so doing such employee's position is thereby made dangerous.
11. TRIAL--Instructions--Invading Province of the Jury. An instruction naming certain facts which, if found to be proven, the jury may consider in connection with all other facts and circumstances existing at the time or immediately prior thereto, but which makes no comment as to their weight or effect or the credibility of the witnesses testifying thereto, is not erroneous as invading the province of the jury.
12. APPEAL AND ERROR-- Harmless Error--Instructions--Cure by Verdict. In an action for damages for personal injuries, where the petition named the amount of different elements of damage sustained by plaintiff, an instruction, otherwise correct, charging generally as to the damages sustained, where no requested instructions as to the several amounts recoverable are presented by the defendant, and the verdict returned is unmistakably in accordance with the evidence and is not excessive, the judgment will not be reversed on account of the court's failure to limit the several items to the amounts claimed in the petition.
13. TRIAL--Requested Instruction--Incorrect Request. In order to entitle a party to insist that a requested instruction be given to the jury, such instruction must be correct, and such that the court might give to the jury without modification or omission. If the instruction as requested be objectionable in any respect, its refusal is not error.
14. RAILROADS -- Injuries to Licensees -- Defenses -- Notice of Danger. That other employees engaged in unloading a car standing on a side track may know of the approach of an engine and string of cars does not relieve the railroad company of its duty to notify those not so informed, and an instruction containing, in effect, such direction, is properly refused.
15. APPEAL AND ERROR-- Review--Verdict--Excessive Damages. A verdict will not be set aside, in a case of tort, for excessive damages, unless it clearly appear that the jury committed some gross and palpable error, or acted under some improper bias, influence, or prejudice, or have totally mistaken the rules of law by which the damages are regulated.
Error from District Court, Bryan County; Jesse M. Hatchett, Judge.
Action by Peter Collins against the Missouri, Oklahoma & Gulf Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.
E. R. Jones and J. C. Wilhoit, (Arthur Miller, of Counsel), for plaintiff in error.
Utterback, Hayes & MacDonald and Ames, Chambers, Lowe & Richardson, for defendant in error.
¶1 The first five assignments of error have to do with the admission of evidence, which it is claimed constituted prejudicial error. The first assignment relates to certain testimony of the witness Cole. The questions, answers, objections, and rulings pertinent thereto are as follows:
¶2 The answer, then, stood as competent evidence, unless excluded further along in the trial. The agreement of counsel that the answer might go in the record was in legal effect a withdrawal of the objection to the question. There was no exception to the court's ruling, but, on the other hand, it was not only acquiesced in, but, as seen, expressly agreed to. Under the stipulation counsel would have had the right to move later on to exclude the testimony, but they did not do so. Atchison, T. & S. F. Ry. Co. v. Baker, 37 Okla. 48, 130 P. 577; State v. Cavanaugh, 98 Iowa 688, 68 N.W. 452; Hotchkiss v. Bon Air Coal & Iron Co., 108 Me. 34, 78 A. 1108; United States v. McCoy, 193 U.S. 593, 24 S. Ct. 528, 48 L. Ed. 805.
¶3 The next objection arose in the admission of the American Mortality Tables, and in permitting one J. C. Crawford, a life insurance agent, to testify therefrom as to the life expectancy of the plaintiff. The objection is rested upon the ground that plaintiff nowhere in his petition claimed damages for impairment of his earning capacity, but only for loss of time; it being said that damages for the impairment of one's earning capacity can be recovered only where specially alleged and made a ground of recovery in the petition. Plaintiff's petition described the injuries sustained, and charged that he was injured in his back, legs, spine, and arms; that he was seriously, greatly, and permanently injured by the agents and employees of the defendant company. Where the effect of the injury to a person is to diminish permanently his earning capacity, then the expectancy of life of such person becomes a matter of importance in estimating the amount of his damages, and proper evidence on that question is admissible. Resort is most often had to the various standard and recognized life tables to establish this fact. A proper foundation should, however, in all cases be laid for their introduction by showing such facts as the age of the person injured, his incapacity or diminished power to work, the value of his services, and the permanency of his injuries. Where, as a consequence of the injury charged, the injured person will necessarily, on account thereof, be less capable of transacting his usual business vocation in the future, proof of the impairment of his general earning capacity may ordinarily be given under the general...
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