Muskogee Elec. Traction Co. v. Rye
| Decision Date | 13 April 1915 |
| Docket Number | Case Number: 4003 |
| Parties | MUSKOGEE ELECTRIC TRACTION CO v. RYE. |
| Court | Oklahoma Supreme Court |
¶0 1. TRIAL--Personal Injuries--Abstract Instructions. In an action for personal injuries, the trial court, after fully defining the issues as joined by the pleadings, instructed the jury that, before the plaintiff can recover, he must show by a preponderance of the evidence, that the defendant was guilty of negligence which caused the injuries complained of. Held not objectionable upon the ground of its generality; the complaining party not having requested a more specific instruction.
2. TRIAL--Instructions--Cure of Error. Any vagueness in an instruction as to the negligence authorizing a verdict for plaintiff, is cured by other instructions stating explicitly the only basis of a verdict for him.
3. TRIAL--Refusal of Instructions Covered--Measure of Damages. Record examined, and held, that the refusal of the trial court to give instruction No. 2 requested by the defendant was not error, because the point made by the requested instruction was covered by the instruction on the measure of damages given by the court.
4. WITNESSES--Examination in Chief--Preliminary Questions. A witness may be questioned in his examination in chief with regard to his residence, occupation, the positions then or previously held by him, that the jury may fairly estimate the value and weight of his testimony.
DAMAGES--Mental Anguish--Connection With Bodily Injury. Mental pain and suffering, accompanying personal injury or physical pain, is always the subject of compensation. The mental anguish, however, should be connected with the bodily injury, and be fairly and reasonably the natural consequence that flows from it.
6. SAME--Proof. Where there is evidence of a serious physical injury and of physical suffering which has not ceased at the time of trial, and there is evidence that the injury is permanent, there is sufficient proof to justify an inference of mental suffering accompanying the continuing physical pain.
Error from Superior Court, Muskogee County; Farrar L. McCain, Judge.
Action by Robert L. Rye against the Muskogee Electric Traction Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Blakeney, Maxey & Miley, for plaintiff in error.
S. M. Rutherford, Jas. W. Cosgrove, and Guy F. Nelson, for defendant in error.
¶1 This was an action in damages for personal injuries commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below. Plaintiff alleged in effect that on the 14th day of February, 1910, he was a passenger on one of the street cars of the defendant company; that when said car stopped to discharge passengers at Eleventh street, in the city of Muskogee, he attempted to alight therefrom, and while he had one foot on the platform of said car, and the other on the step thereof, the defendant, with full knowledge of the situation and intention of said plaintiff, carelessly and negligently started said car with a sudden and violent jerk without allowing said plaintiff a reasonable time in which to alight, thereby causing said plaintiff to lose his balance and fall from his position on said car platform and steps upon his left side and shoulder; that the jerk from said car and contact with the street dislocated plaintiff's left shoulder, tore and lacerated the muscles of the same, and strained and bruised plaintiff's left hip and side; that the injury to his left shoulder is permanent; that plaintiff has suffered great physical pain and mental anguish from such injuries; that the injuries so sustained by plaintiff, as aforesaid, were without fault or negligence on his part, and were caused directly or proximately by the carelessness and negligence of defendant, its agents, servants, and employees, as aforesaid.
¶2 The answer of the defendant contains a general denial, and specific denials that the plaintiff had ever given to the defendant, or to any of its servants or employees, any notice of his intention to alight from said car, or that he requested that said car be stopped, or that he had in any way indicated his desire to the servants in charge of said car to stop the same, or that said car was started after having been stopped in a sudden, violent, and unusual manner. And the answer affirmatively alleged that said plaintiff attempted to jump from said car while it was moving, at a point where the same was not required to stop, and thereby received whatever injuries he may have received solely through his own negligence. Plaintiff's reply was a general denial.
¶3 Upon trial to a jury there was a verdict for the plaintiff, to reverse which this proceeding in error was commenced.The grounds for reversal, as summarized by counsel for plaintiff in error in their brief, may be stated as follows: (1) Error of the trial court in giving instruction No. 3; (2) error of the trial court in refusing to give instruction No. 2, requested by defendant; (3) error of the trial court in refusing to strike out certain evidence which counsel contend tended to establish a predicate for damages sustained by the plaintiff in his profession of practicing medicine; (4) error of the trial court in giving instruction No. 9.
¶4 Instruction No. 3 reads as follows:
"You are instructed that, before the plaintiff can recover in this case, he must show, by a preponderance of the evidence, that the defendant, its agents or employees, was guilty of negligence which caused the injuries complained of by him, and that his injuries were not due to his own negligence or carelessness."
¶5 Counsel contends that this instruction is erroneous because it allowed the jury to find a verdict for the plaintiff, if it was established by a preponderance of the evidence that the defendant, its agents or employees were guilty of negligence in any respect which caused the injury complained of. The instruction, standing alone, is subject to the criticism directed against it by counsel. The acts of negligence relied upon in the petition were negligence in starting the car suddenly and with an unusual jerk without allowing plaintiff a reasonable time to alight. The trial court in its first two instructions clearly defined the exact issues between the parties as joined by the pleadings, stating with fullness the grounds of negligence upon which the plaintiff relied for recovery and the defenses relied upon by the defendant. Immediately after this follows the instruction complained of. Obviously the purpose of the instructions was to charge the jury as to where the burden of proof lay and to advise them that, before the plaintiff could recover at all, he must establish the acts of negligence stated in his petition, as defined by the court in the preceding part of its instruction. In such circumstances we do not see how the jury could have been misled. Whilst the instruction is not a model of clearness and perspicuity, the principal fault that may be found with it, in so far as the defendant is concerned, is its generality. The complaining party is not in position to object to the generality of an instruction given when he did not ask for a more explicit instruction on the point involved.
¶6 In the case of M., K. & T. Ry. Co. v. Young, 8 Kan. App. 525, 56 P. 542, a personal injury case, the instruction was as follows:
"If you find from the evidence that the plaintiff sustained the injuries as alleged in the petition, or any part thereof, and that such injuries so sustained were caused by the negligence of the employees of the defendant company, and that the plaintiff was not himself guilty of negligence contributing to such injuries, then you ought to find for the plaintiff."
¶7 Counsel complained of this instruction upon the ground that it did not confine the jury to the issues framed by the pleadings. The court said:
¶8 Other authorities to the same effect are Magoon v. Before, 73 Vt. 231, 50 A. 1070; McCormick Harv. Mach. Co. v. McNicholas, 66 Minn. 384, 69 N.W. 36; Hansen v. Gaar, Scott & Co., 68 Minn. 68, 70 N.W. 853; Southern Ry. Co. v. Hobbs, 151 Ala. 335, 43 So. 844; T. & N. O. Ry. Co. v. Ochiltree (Tex. Civ. App.) 127 S.W. 584; M.,...
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