Okla. City Ry. Co. v. Barkett

• Citation: 30 Okla. 28,1911 OK 312,118 P. 350
• Decision Date: 26 September 1911
• Docket Number: Case Number: 1137
• Parties: OKLAHOMA CITY RY. CO. v. BARKETT.
• Court: Supreme Court of Oklahoma

1911 OK 312

118 P. 350

30 Okla. 28

OKLAHOMA CITY RY. CO. v. BARKETT.

Case Number: 1137

Supreme Court of Oklahoma

Decided: September 26, 1911

Syllabus

¶0 NEGLIGENCE--Contributory Negligence--Last Clear Chance. In an action for damages on account of the alleged negligent act of defendant, it is error for the court to charge the jury that the plaintiff may recover notwithstanding his contributory negligence, if the defendant failed to exercise reasonable care to avoid the injury after it discovered, or by the exercise of reasonable care might have discovered, that an accident was imminent.

Error from District Court, Oklahoma County; George W. Clark, Judge.

Action by Saida Barkett against the Oklahoma City Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Shartel, Keaton & Wells, for plaintiff in error

Wm. L. McCann and S. A. Byers, for defendant in error

AMES, C.

¶1 The question involved in this case is whether or not there was error in giving the following instruction:

"The duty of the plaintiff to use ordinary and reasonable care in crossing a railroad track is the same in degree and kind as the duty of the defendant to use ordinary and reasonable care in the operation of its cars, and even though the defendant failed to use such care, and the accident would have happened had such care been used by it, still the plaintiff cannot recover if she herself failed to use ordinary and reasonable care, and but for her failure, the accident would not have happened, unless it further appears from the evidence that, notwithstanding such negligence on the part of the plaintiff, the defendant failed to exercise reasonable care to avoid the injury after it discovered, or by the exercise of reasonable care might have discovered, that an accident was imminent. Excepted to by defendant, and defendant moves to modify this instruction by striking out the words 'or by the exercise of reasonable care might have discovered' and excepts to the refusal of the court to so modify the instruction."

¶2 The particular error alleged by the plaintiff in error is in inserting the words, "or by the exercise of reasonable care might have discovered."

¶3 The plaintiff and the defendant both had a right to use the streets of the city. Therefore at the time of the accident they were in the exercise of equal rights. It was likewise the duty of both to exercise reasonable care to avoid collision, but it was not the duty of the defendant to exercise a higher degree of care than the plaintiff, nor was it the duty of the plaintiff to exercise a higher degree of care than the defendant. It was the duty of each, acting in his own place and under the circumstances surrounding him, to exercise that degree of care to avoid the accident which a reasonably prudent person would have exercised under the circumstances. If the defendant's negligence is the proximate cause of an injury, he is liable for damages. If the plaintiff's negligence and the defendant's negligence are equal, it cannot be said that the defendant's negligence is the proximate cause, and therefore the plaintiff is not entitled to recover. If, therefore, the plaintiff and the defendant, with equal negligence, approach each other on the highway, and injury results from the collision, there can be no recovery, because it cannot be said that the negligence of either one is the proximate cause of the injury to the other. It is manifestly true that, if neither one sees the other at all, both are equally negligent, because both are guilty of the same breach of duty to look. If, however, one sees the other, it is, of course, his duty to act with reasonable care after thus seeing the other to avoid the injury, and he cannot insist upon the other's negligence as a protection to him, if he, after discovering the other's situation, does not exercise reasonable care to prevent the accident. The principles involved are settled by the cases of A., T. & S. F. Ry. Co. v. Baker, 21 Okla. 51, 56, 95 P. 433, 434, 16 L. R. A. (N. S.) 825, and Clark v. St. L. & S. F. R. Co., 24 Okla. 764, 774, 108 P. 361, 365. In the Baker case, after pointing out that the evidence showed that the engineer discovered the peril of the plaintiff, and that there was a conflict in the testimony as to whether, after discovering it, he used reasonable care, the court said:

"This being so, it was proper to submit to the jury the question as to whether the plaintiff in error, after discovering the dangerous situation of the defendant in error, exercised reasonable care and prudence to avoid the injury."

¶4 In the Clark case it is...