Muskogee Elec. Traction Co. v. Tice

• Decision Date: 24 November 1925
• Docket Number: 15808.
• Parties: MUSKOGEE ELECTRIC TRACTION CO. v. TICE.
• Court: Oklahoma Supreme Court

243 P. 175

116 Okla. 24, 1925 OK 963

MUSKOGEE ELECTRIC TRACTION CO. v. TICE.

No. 15808.

Supreme Court of Oklahoma

November 24, 1925

Rehearing Denied Jan. 26, 1926.

Syllabus by the Court.

Where there is any evidence reasonably tending to support the verdict of the jury, it will not be disturbed by this court on appeal.

The doctrine of "last clear chance" is recognized by the courts as an exception to the general rule that the contributory negligence of the person injured will bar a recovery, without reference to the degree of negligence on his part; and, under this exception to the rule, the injured person may recover damages for an injury resulting from the negligence of the defendant, although the negligence of the injured person exposed him to the danger of the injury sustained, if the injury were more immediately caused by the want of care, on the defendant's part, to avoid the injury, after discovering the peril of the injured person.

In an action for injuries from a collision at a public crossing with a motor car of a suburban railroad while running across a public thoroughfare, the failure of plaintiff to look and listen before driving on the track was not, as a matter of law, negligence, since, under such circumstances, the railroad was a street railroad and the motor car a street car, and therefore a different rule obtains than that applicable to a steam railroad.

Commissioners' Opinion, Division No. 5.

Appeal from District Court, Muskogee County; O. H. Searcy, Judge.

Action by Edgar D. Tice against the Muskogee Electric Traction Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

C. A Summers, of Muskogee, for plaintiff in error.

Neff & Neff and Harry Davis, all of Muskogee, for defendant in error.

THOMPSON C.

This action was commenced in the district court of Muskogee county, Okl., by Edgar D. Tice, defendant in error, plaintiff below, against the Muskogee Electric Traction Company, a corporation, plaintiff in error, defendant below, to recover damages in the sum of $21,100 for injuries received by him and to his automobile and to a load of merchandise in a collision, at a public crossing, of his automobile and the car of plaintiff in error. Parties will be referred to in this opinion as plaintiff and defendant as they appeared in the lower court.

The plaintiff, in substance, alleged that he was traveling over the public highway between Muskogee, Okl., and Braggs, Okl in a Ford truck, and, at a place known as Ross Lake Stop upon the line of the defendant company, that the defendant carelessly, negligently, and wantonly ran one of its street cars into his Ford truck, demolishing the same and severely injuring the plaintiff, setting forth the several injuries to his person, the damage to his machine, the amount of his hospital fees and doctor and nurse bills, and setting forth the amount of damages to the load of merchandise, which he was conveying from the city of Muskogee to the town of Braggs. The defendant answered by way of general denial and pleaded contributory negligence on part of the plaintiff. Trial was had to the court and jury, and the jury returned its verdict in favor of the plaintiff and against the defendant in the sum of $1,858.70. Motion for new trial was filed, heard, and overruled, and exception reserved by the defendant. Judgment was rendered on the verdict of the jury for the above amount, and the cause comes regularly upon appeal to this court by the defendant for review.

There are several assignments of error, but the attorney for defendant contents himself with presenting the same for consideration by this court under two heads, which are as follows:

"I. The verdict and judgment is contrary to and not supported by the evidence.

II. The court erred in submitting the question of last clear chance to the jury under instruction No. 5, as follows 'You are further instructed that if you believe from the evidence that the plaintiff did not observe the approaching street car, but that the motorman on the said street car saw the plaintiff, and when the motorman, otherwise in the exercise of ordinary care, observed that the plaintiff was not going to stop, then it was the duty of the motorman to use every means reasonably within his power to stop the street car and avoid a collision, and if he failed to do this then your verdict should be for the plaintiff."

In passing upon the first proposition it will be necessary to review briefly the evidence in the case. The evidence on part of the plaintiff shows that he was driving his truck at a speed of about 12 miles an hour; that when he approached within 100 or 150 yards of the defendant's track, he looked south and did not see any car approaching, although he had an unobstructed view of a quarter of a mile; that when he drove up to 40 or 50 yards of the track he looked north and did not see any car; that the road, which he was traveling, was a public highway, and the traffic was very heavy on said highway, as some witnesses testified there was as much travel over this highway over this crossing as there was over the streets of Muskogee other than two main thoroughfares; that the plaintiff and his companion, Stanfield, who was with him, heard no bell ring or other signal; that the interurban electric car of the defendant was being operated by a lineman and not by a regular motorman or conductor; that the car of defendant was the same in construction as the other electric street cars used in the city of Muskogee and equipped with the same appliances; that the lineman, who was operating the car, acting as motorman, saw the plaintiff traveling in his truck more than a quarter of a mile from the crossing; that the accident occurred at a place where the car stops, or slows down, known as the "Ross Lake Stop"; that the car was about 10 minutes ahead of its scheduled time at this point; that the plaintiff's truck was struck with such force and violence that it was totally demolished, part of it being on one side of the track and part on the other side after the accident, and Stanfield, one of the occupants, says he was thrown 55 or 60 feet. There was evidence that the car of defendant, going 20 miles an hour, by applying the brakes and turning off the current could have been stopped in 20 or 25 feet, as testified to by Joe Gillenwater, the motorman in charge of the car, and the lineman, who was acting as motorman, testified that he thought plaintiff was going to stop and he accelerated the speed of his car, and that he had before that slackened the speed of the car about 100 yards from the crossing and sounded the gong or bell; that when he saw he was going to collide with plaintiff's truck, he put on the air and reversed his car about 15 or 20 feet from the point of collision, and after the car struck the truck it ran about 10 or 12 feet beyond the crossing.

The evidence is clear as to the injuries to the plaintiff and his truck, his load of merchandise, and his expenses for doctor and hospital bills and...