Muskogee Elec. Traction Co. v. Latty

• Decision Date: 06 January 1920
• Docket Number: 9504.
• Citation: 187 P. 491,77 Okla. 156,1920 OK 9
• Parties: MUSKOGEE ELECTRIC TRACTION CO. v. LATTY.
• Court: Oklahoma Supreme Court

187 P. 491

77 Okla. 156, 1920 OK 9

MUSKOGEE ELECTRIC TRACTION CO. v. LATTY.

No. 9504.

Supreme Court of Oklahoma

January 6, 1920

Rehearing Denied Jan. 17, 1920.

Syllabus by the Court.

Persons embarking on or alighting from an interurban electric car upon an invitation expressed or implied of the company's agents in charge of such car are justified in acting upon the assumption that the company has taken proper precautions to insure their safety. One of such precautions is stopping its cars at places where it is safe for passengers to embark or alight. The stopping of a car at a place where people are standing awaiting to get on board is an implied invitation to such persons to take passage on the car if they so desire.

Although the defendant company in operating its interurban cars which for the accommodation of passengers, stopped at a highway crossing which had become the custom of the company, was not required to provide a passenger platform at such crossings it was required to exercise reasonable care to enable passengers to alight or embark with as little danger as practicable, and where a car stopped at such highway crossing and a passenger invited to embark at a place more hazardous than at which the car might conveniently have stopped, the company was negligent, and where, under such circumstances the plaintiff in attempting to board the car was injured, the questions as to whether or not such injuries were the proximate cause of the defendant company's negligence in stopping the car at a more hazardous place than at which the car might conveniently have been stopped, or whether such injuries were the proximate cause of the plaintiff's contributory negligence in boarding the car, were the questions of fact to be submitted to the jury under appropriate instructions of the court, and the court's refusal of the request of the defendant for a peremptory instruction to find for the defendant was properly refused.

Record examined, and it is held in the instant case that there was evidence reasonably tending to support the verdict of the jury and that the trial court did not err in overruling the defendant's motion for a new trial.

Additional Syllabus by Editorial Staff.

Before an injured passenger suing for personal injury from the carrier's negligence can recover, he must prove all the material allegations of his petition by a preponderance of the evidence.

An act is the "proximate cause" of an injury when such injury was the natural and probable consequence of the act and when that ought to have been foreseen in the light of the attending circumstances.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.]

The question of proximate cause is one of fact for the jury, except where the facts are not in dispute and reasonable men cannot differ on the question, in which case it could become one of fact for the court.

In any action triable to the jury where there is evidence reasonably tending to support its verdict, it will not be disturbed on appeal.

Error from District Court, Muskogee County.

Action by Martha Latty against the Muskogee Electric Traction Company. Verdict and judgment for plaintiff, and defendant brings error. Affirmed.

B. B. Blakeney and J. H. Maxey, both of Tulsa, for plaintiff in error.

Myron White, of Muskogee, and R. L. Disney, of Ardmore, for defendant in error.

JOHNSON J.

This was an action for personal injury, commenced in the district court of Muskogee county, by the defendant in error against the plaintiff in error. The parties will be referred to herein as they appeared in the court below.

The plaintiff sued to recover $5,000. The cause was tried to a jury, who returned a verdict in favor of the plaintiff for $1,000, upon which the trial court rendered judgment, to reverse which this proceeding in error was regularly commenced.

The defendant's assignments of error are: (1) The court erred in overruling motion for a new trial; (2) verdict and judgment are not sustained by sufficient evidence; (3) verdict and judgment are contrary to law; (4) court erred in refusing to sustain demurrer to plaintiff's evidence; (5) erred in refusing to direct the jury to return verdict for the defendant.

In the plaintiff's amended petition the act of negligence charged against the defendant is as follows:

"Plaintiff further states that on the 28th day of October, 1913, she and other parties with her went to the point heretofore mentioned, which point is the intersection of the public highway or the section line road and said electric line of railway, for the purpose of boarding the car operated thereon by the defendant company, and that plaintiff stopped upon the graded roadway of said public road, at which point was the customary and usual stopping of cars on said line for the purpose of taking and discharging passengers, and upon the arrival of said car going toward Hyde Park on said line, said car failed to stop upon the graded roadway, but went over said usual stopping place, and through the careless and negligent operation of said car by defendant's agents and employés, said car was stopped at a point east of the graded roadway, so that this plaintiff was compelled to leave the graded roadway and walk down into a ditch or depression along the graded roadway or right of way, along the track of defendant, and by reason of said careless and negligent operation of said car as aforesaid, this plaintiff was compelled to board said car from said ditch or depression, and said car was stopped in a position so that the lower step of the car was a distance of two or three feet from the ground, and the plaintiff, in attempting to board the same, had great difficulty in climbing upon the lower step of the car by reason of the height of the same from the ground; and that in climbing upon said step this plaintiff took hold of the handrail and placed her left knee upon the lower step, and in attempting to put her right foot upon the said step, her right foot slipped from the said step, and the lower part of her right leg struck the edge thereon, and severely and dangerously fractured and bruised the bone and the tissues surrounding the same, below the knee, and by reason thereof this plaintiff was confined to her bed for a period of six months, and was unable to perform her usual duties for a period of eighteen months from said accident and injuries so sustained, and plaintiff has suffered great physical pain and mental anguish by reason of the injuries so received by her as aforesaid, and that she has been permanently crippled, disfigured, and disabled by reason of said injuries, and has been put to a great expense in trying to be cured of said injuries and compelled to expend approximately $100 for help and assistance in her household duties by reason of said injuries, during the eighteen months immediately following said injuries so received. Plaintiff further states that the graded roadway at the intersection of the public highway and said street railway crossing was the usual and customary place for said street cars to stop for the purpose of receiving and discharging passengers, and that said defendant company did usually and customarily stop at said point and receive, take on, and discharge passengers, and that the distance from said road grade to the lower step of the street cars of said defendant company at the point of said crossing was approximately eleven inches, making said road crossing a reasonably safe, suitable and convenient place for receiving and discharging passengers by defendant company's street cars; whereas the point at which said street car actually stopped to receive plaintiff as a passenger, at the time plaintiff sustained said injuries, was a distance of about three or four feet from and beyond the said graded roadway and from said safe and suitable place for the receiving and discharging of passengers, and was directly over and above a ditch or depression by the side of defendant's roadbed, making the distance from the lower step of the street car to the ground in said depression or ditch approximately three feet, and that by reason of the position of said car steps over said ditch or depression at the time said car stopped to receive this plaintiff, it was necessary for the plaintiff to go into said ditch or depression; and that said injuries were received without any negligence or fault whatsoever on the part of this plaintiff, but solely through and by reason of the carelessness and negligence of the defendant street car company and its employés in passing by and beyond said safe and usual and customary place of stopping said street cars, and in stopping said street car to take on the plaintiff at said point above said ditch or depression an unusual place of receiving and discharging passengers, which said point where said car was so stopped through the negligence of defendant, its agents and employés, was an unsafe, unsuitable, unusual and dangerous place to receive or discharge passengers."

The defendant's answer consisted of a general denial and the defense of contributory negligence, to which answer the plaintiff filed a reply consisting of a general denial. There was no material conflict in the evidence, which was, in substance: That on the day of the alleged injury, the plaintiff, in company with her mother, her son, who was a young man about grown, her sister, and two small children of her sister's, and a lady friend, a Mrs. Ledbetter boarded one of the defendant's cars for the purpose of visiting the city cemetery which was located outside the city limits, and, on said car reaching a public highway or section line at a point about 400 yards from the cemetery, it stopped, and the parties named left said...