Mo., K. & T. Ry. Co. v. Smith

• Decision Date: 05 February 1924
• Docket Number: Case Number: 12414
• Parties: MISSOURI, K. & T. RY. CO. v. SMITH.
• Court: Oklahoma Supreme Court

1924 OK 146

223 P. 373

97 Okla. 152

MISSOURI, K. & T. RY. CO. v. SMITH.

Case Number: 12414

Supreme Court of Oklahoma

Decided: February 5, 1924

Syllabus

¶0 1. Carriers--Negligence--Personal Injury--Doctrine of Last Clear Chance.

Plaintiff's negligence does not excuse defendant from duty of exercising reasonable care after discovery of peril. The doctrine of last clear chance applies usually in cases where the plaintiff or his property is in some danger from a threatened contact with some agency under the control of the defendant when the plaintiff cannot, and the defendant can, prevent the injury. Defendant is charged with the duty of using ordinary care to prevent injury or accident in such cases when defendant sees plaintiff's peril, It is defendant's duty to act with reasonable care after thus seeing the other, to avoid the injury, and defendant cannot insist upon the other's negligence as a protection when after defendant has discovered the other's situation, it does not exercise reasonable care to prevent the accident.

Held, that under the facts in the instant case it was proper to submit to the jury the question as to whether plaintiff in error, after discovering the dangerous situation of the defendant in error, exercised reasonable care and prudence to avoid the injury.

Instructions examined, and held, that the instructions as a whole properly state the doctrine of last clear chance, and do not impose upon the defendant a greater burden than that of using ordinary care to avoid injuring plaintiff after the discovery of his peril.

2. Negligence--Personal Injuries--Contributory Negligence.

Contributory negligence is the negligence of the person on account of whose injury the action was brought, amounting to a want of ordinary care, when combined with a proximate connection between this want of care and the injury complained of.

Held, that an instruction which states the substance of contributory negligence in apt terms in accordance with the foregoing definition is sufficient, although the instruction does not contain the specific term "contributory negligence."

3. Appeal and Error--Discretion of Court--Admission of Imperfect Diagrams in Evidence.

To render admissible in evidence a cut, model or diagram, preliminary evidence should be given of the correctness of the representation, and when such cut or diagram is admitted in evidence, not as an exact representation of this interior of the cab of defendant's engine, and where further evidence discloses the difference between such representation and defendant's cab, and defendant is given a full opportunity to explain such cut, held, that the decision of the trial court on the question of the admissibility of such cut will not be reviewed unless there is a manifest abuse of discretion. Held, further, that no such clear or manifest abuse of discretion appears in the ruling of the trial court on the admissibility of such cut or diagram.

4. Damages--Personal Injuries -- Excessive Recovery.

When an elderly man, 51 years of age, is injured by the negligence of defendant, and such injuries are permanent and serious, involving in effect the destruction of an arm, the breaking of an ear-drum, and impairment of hearing, the verdict in the sum of $ 16,500 is not excessive.

Record examined and held, that plaintiff's injuries were serious, painful and permanent, and greatly impaired his earning capacity.

Held, further, that a verdict of $ 16,500 was not excessive.

Commissioners' Opinion, Division No. 2.

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.

Action by W. L. Smith against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

M. D. Green and H. L. Smith, for plaintiff in error.

Snyder, Owen & Lybrand, for defendant in error.

LYONS, C.

¶1 W. L. Smith, hereinafter called the plaintiff, sued Missouri, Kansas & Texas Railway Company, hereinafter called the defendant, to recover $ 16,500 for personal injuries received by him while an intending passenger standing on the defendant's depot platform in Cleveland, Okla.

¶2 The evidence tends to show that Smith had purchased a ticket and was waiting for a passenger train upon which he intended to embark. It appears that the engine on the incoming passenger train struck another man standing near Smith on the edge of the depot platform, the plaintiff being in turn struck by the other man and afterwards falling, and then being himself struck by the engine of the train, breaking his arm, dislocating his elbow, breaking his ear-drum, and impairing his hearing.

¶3 The plaintiff in error contends that there is not sufficient evidence to make out a case of primary negligence, but with this we are unable to agree. The evidence is conflicting as to whether the required signals were given by ringing the bell and sounding the whistle, and since the jury has the function of trying the facts, we are not at liberty to disturb the verdict on the contention made in this respect, although the testimony as to the giving of proper signals may not be wholly satisfactory to the court. The trial court sits as the thirteenth juror on hearing the motion for a new trial, and since the trial court was satisfied that the evidence on the question of primary negligence was sufficient, we are not at liberty to disturb the verdict on the ground urged.

¶4 It appears also that at the time the passenger train was approaching the station, defendants' servants were switching a freight train, coupling and uncoupling the same; that the switch engine's bell was ringing constantly, and that its whistle was sounded a number of times, and that the freight train was so situated on the tracks as to interfere with the view of the incoming passenger train. These circumstances, of course, were properly considered by the jury, and we think, in view of the entire evidence, were sufficient to make out a case of primary negligence. The defendant has alleged a number of errors here, but we think it material to notice at length only three, which are vigorously urged, and which are relied on for a reversal of this cause:

(a) That the court committed reversible error in instruction No. 9 in submitting the doctrine of last clear chance.

(b) That the court erred in permitting a witness to use a drawing or plat in giving testimony, and in permitting said drawing to be introduced in evidence.

(c) That the plaintiff cannot recover under the last clear chance doctrine for the reason that the negligence of the plaintiff was continuing, and continued contributory negligence precludes recovery.We shall discuss these alleged errors in the order above stated.

¶5 Instruction No. 9 given by the court, is as follows:

"You are instructed that if you should find and believe from the evidence that the engineer of the train which is alleged to have caused the accident to plaintiff caused the whistle of the engine to be sounded at the usual place, upon approaching the station, and that the bell of the engine was ringing as it came into the station, and that the fireman as soon as he realized the fact that people on the platform were possibly in a dangerous position, yelled to the persons standing on the platform a warning to 'look out' and you should find that the engineer and fireman of the train in so doing, exercised that degree of care which ordinarily prudent men under the circumstances would have exercised to prevent an accident, and that as ordinarily prudent men they did not omit to do anything to prevent the injury complained of by plaintiff, then you are instructed your verdict should be for defendant."

¶6 In instruction No. 8 the jury are told:

"You are instructed that if you shall find that the defendant was negligent, but that the plaintiff at the time he was injured, was standing near the edge of the station platform, he did not exercise that care and prudence which an ordinarily careful and prudent man would have exercised under the same circumstances; and that such want of care, if you shall so find, proximately contributed to the plaintiff's injury; then you are instructed that your verdict must be for the defendant. In this connection you are further instructed that while it is ordinarily true that plaintiff could not recover if it is shown by a preponderance of the evidence that he himself was guilty of negligence at the time of his injury which was a present, contributing, proximate cause thereof, yet, notwithstanding this general rule, if the defendant's servants in charge of its train at the time of the accident, saw the plaintiff in a position if peril, it then became their duty upon discovering such condition of peril, to use ordinary care to avoid injuring him, and this notwithstanding you, may believe from a preponderance of the evidence that plaintiff has been guilty of contributory negligence; and in this connection you are further instructed that if you find and believe from the evidence that the servants of the defendant company in charge of its train, saw that the plaintiff or the said Kirk, was in a position of peril, in time to avoid injuring the said Kirk, or the said plaintiff, by the exercise of ordinary care by means reasonably within their control, and that they failed so to do, then you are instructed that the plaintiff would be entitled to recover, and your verdict will be for the plaintiff, but in his connection you are further instructed that if defendant's servants after discovering the plaintiff's position of peril, if you find such to be the fact, then used ordinary care to prevent his injury, the use of such ordinary care under such circumstances as outlined, would fulfill its duty under the law; and if you find that they did so, from the evidence in the case, then under such circumstances the plaintiff would not be entitled to recover, and your verdict will be for the defendant."

¶7 It is the contention of the defendant that this part of the sentence in instruction No. 9, to...