Okla. City-Ada-Atoka R. Co. v. Riddle

• Decision Date: 26 April 1938
• Docket Number: Case Number: 28104
• Parties: OKLAHOMA CITY-ADA-ATOKA R. CO. v. RIDDLE
• Court: Oklahoma Supreme Court

1938 OK 293

82 P.2d 304

183 Okla. 318

OKLAHOMA CITY-ADA-ATOKA R. CO. v. RIDDLE

Case Number: 28104

Supreme Court of Oklahoma

Decided: April 26, 1938

Syllabus

¶0 1. TRIAL--Sufficiency of Instructions Construed as a Whole.

Trial court's instructions must be construed as a whole, and no instruction must contain all the law of the ease: it is only necessary that they fairly present the law to be applied to the issues. and that the different instructions, do not conflict.

2. SAME--RefusaI of Requested Instructions.

When instructions given fairly state the law to be applied in a case, it is not error for the court to refuse the requested instructions.

3. SAME--Negligence--Instructions Covering All Issues in Negligence Case.

When, in a negligence case, the court instructs as to negligence, burden of proof, proximate cause, and intervening cause and contributory negligence, these being all the issues upon which the case was tried, it is not error to refuse requested instructions covering the same issues.

4. APPEAL AND ERROR--Review--Sufficiency of Instructions Considered as a Whole.

In reviewing instructions to determine whether error was committed in granting or refusing of certain instructions, this court will consider the instructions its a whole, and if instructions given fairly present the issues to the jury, the cause will not be reversed because certain instructions, standing alone, may be subject to criticism.

Appeal from District Court, Pottawatomie County; Leroy G. Cooper, Judge.

Action by J. G. Riddle against the Oklahoma City-AdaAtoka Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

O. E. Swan, for plaintiff in error.

W. P. Morrison and Ralph H. Schaller, for defendant in error.

CORN, J.

¶1 This case was begun in the district court of Pottawatomie county by defendant in error, to recover damages for personal injuries alleged to have been caused by the negligence of the plaintiff in error. Hereafter the parties will be referred to as they appeared in the trial court.

¶2 The facts are that the plaintiff, an employee of a trucking contractor, together with his employer and fellow workers, went to unload a freight car placed upon a siding at Stonewall, Okla., by the defendant. This car was an ordinary freight car with sliding doors on each side, one of the doors having been cleated up to hold it in place. The plaintiff and his fellow workers pried these cleats from the door in attempting to open it. It appeared that the track upon which the door operated was in some manner bent or sprung. and when they attempted to slide the door open it fell, striking the plaintiff upon the back and falling upon him. The plaintiff alleged that by reason of being struck by this falling door be sustained severe injuries to his, back, and since that time has been unable to work, and produced medical testimony to show that he sustained a compressed fracture of the fifth lumbar vertebra, resulting in a permanent injury. At close of plaintiff's evidence, defendant's demurrer thereto was overruled.

¶3 Defendant's evidence was directed toward showing that there was, a written warning "Do Not Open" upon this door, and that it was warning of a dangerous condition, and contended that in violating this warning the plaintiff was guilty of contributory negligence, thereby relieving defendant of liability. Defendant's evidence was further directed toward showing that the plaintiff was only slightly injured, if injured at all, and sustained no permanent injury.

¶4 At the close of all the evidence, the court instructed the jury, and thereafter they returned a verdict for the plaintiff for $5,000. From this verdict and judgment the defendant appeals, setting forth 14 assignments of error, 11 of which complain of the refusal to grant requested instructions and the giving of others, over objections of the defendant.

¶5 The first assignment of error is the contention that the trial court erred in overruling the defendant's demurrer to the evidence, and in refusing to instruct the jury to return a verdict for the defendant. Under this proposition the defendant cites numerous authorities holding that where the evidence does not show a causal connection between the alleged negligence and the resulting injury, the trial court should, upon proper request, direct a verdict for the defendant.

¶6 This court has repeatedly held that where there is an issue as to whether the commission or omission of an act is negligence, it is for the jury to decide. Miller v. Dobbs, 180 Okla. 576, 71 P.2d 737. Further, when the evidence reasonably establishes primary negligence and raises a question of proximate cause so that reasonable men might draw different conclusions, the ease is one for the jury. Cherry v. Arnwine, 126 Okla. 285, 259 P. 232. This court has also held that it is error to sustain a demurrer to the evidence under such circumstances. Selby v. Osage Torpedo Co., 112 Okla. 303, 241 P. 130, 44 A. L. R. 120.

¶7 As authority that the trial court is not justified in directing a verdict in a personal injury action where negligence is alleged, if there is evidence reasonably tending to prove the alleged negligence and resulting injury, see Kramer, Gdn., v. Nichols-Chandler Home Bldg. & Brokerage Co., 93 Okla. 227, 220 P. 338. Also, it has been held to be error to instruct a verdict for defendant where evidence is such that men of ordinary intelligence may arrive at different conclusions as to responsibility for injury. Crabb v. Oklahoma G. & E. Co., 120 Okla. 182, 250 P. 926.

¶8 Inasmuch as there existed a sharp conflict in the testimony, and because it was such that reasonable men might draw different conclusions therefrom, the trial court's action in overruling the defendant's demurrer to the evidence and in refusing to direct a verdict for the defendant was entirely proper.

¶9 Defendant's next assignment of error is that the trial court refused to instruct the jury as to the issues covering the case, failed to properly instruct the jury as to proximate cause, intervening cause, negligence of third persons as affecting defendant's liability, and refused to grant certain requested instructions dealing with negligence and contributory negligence.

¶10 We have examined the instructions given by the court, and also those requested by the defendant, and find that the trial court sufficiently instructed the jury as to the issues above mentioned in instructions Nos. 4, 6, 8, and 9. These particular instructions, when considered with the instructions as a whole, fairly instructed the jury as to the law to be applied to the facts in the case. Error is not to be predicated upon giving of instructions which correctly submit the theory upon which the parties tried the case. Wallace v. Blasingame, 53 Okla. 198, 155 P. 1143. See, also, Mitchell v. Vogele, 125 Okla. 176, 256 P. 906.

¶11 The third assignment of error is in the trial court's refusal to give defendant's requested instruction No. 2, telling the jury that negligence is never presumed, but must be proved by preponderance of the evidence, and that the mere fact of injury is not proof of negligence, and that it had to be shown that plaintiff's injury was the proximate result of defendant's negligence. This instruction was refused, but in the instructions given, the court charged the jury that the plaintiff had to bear the burden of proof, defined proximate cause and told the jury that if they found defendant's negligence to have been the proximate cause of plaintiff's injury, negligence of fellow workers, in absence of contributory negligence on plaintiff's part, would not relieve defendant from liability.

¶12 There is a multitude of decisions from this court holding that it is not error to refuse requested instructions when the instructions requested are sufficiently covered by instructions under which jury is actually charged. Kansas, O. & G. Ry. Co. v. Jones, 161 Okla. 206, 17 P.2d 959; Shell Petroleum Corp. v. Wood, 168 Okla. 274, 32 P.2d 882.

¶13 The defendant next contends that it was reversible error for the trial court to refuse its requested instruction No. 4, which was that the plaintiff had to show not only that defendant might have been guilty of negligence, but that the evidence had to show defendant was guilty, and that if evidence showed any one of several things to have happened, for some of which defendant was liable and for some of which not liable, then it was the court's duty to direct the jury to return a verdict for the defendant, and that it was not for the jury to guess or speculate as to defendant's negligence.

¶14 The request was refused, but in instruction No. 2 the court charged the jury as to the burden of proof; by instruction No. 5, defined proximate cause; and in instruction No. 9 told the jury that if they found such negligence to have been the proximate cause of the injury, then only contributory negligence on the part of the plaintiff would relieve the defendant from liability. Then, in instruction No. 10, the jury was told that defendant was not an insurer of the safe condition of the car, but only owed the duty to exercise ordinary care in performance of its duties.

¶15 The defendant next claims error in the trial court's action in refusing requested instructions Nos. 6 and 7, contending that not only did the court fail to define intervening cause for the jury, but further told the jury that the negligence of the employer or fellow workers would not relieve defendant of...