Okla. Ry. Co. v. Thomas
| Decision Date | 30 January 1917 |
| Docket Number | Case Number: 5759 |
| Citation | 164 P. 120,63 Okla. 219,1917 OK 128 |
| Court | Oklahoma Supreme Court |
| Parties | OKLAHOMA RY. CO. v. THOMAS. |
¶0 1. Street Railroads--Collision Between Car and Fire Apparatus- -Contributory Negligence. Because of the exceptional circumstances under which firemen respond to an alarm of fire and under which fire apparatus is operated, the ordinary rules which are almost universal in their application regulating the conduct of persons engaged in their private business or pleasure are not controlling in a case where members of a fire department are hurrying to the scene of a fire in answer to a fire alarm.
2. Same-- Observance of Ordinance--Presumption. The fire department of Oklahoma City was by ordinance given the right of way in passing to a fire, and defendant street railway company was required by ordinance to stop its street cars in case of fire, 300 feet from the street intersection on which fire apparatus would cross its track. Plaintiff was riding on a truck to a fire, driven by another. Proper warnings were being given of the approach of the truck, and plaintiff and the others riding upon said truck were justified in assuming that defendant's car would be stopped as required by ordinance.
3. Same--Contributory Negligence--Evidence. In an action for damages for injuries to a fireman caused by a collision between a truck upon which he was riding to a fire, and a street car, evidence that plaintiff had previously ridden upon the truck when traveling at a similar rate of speed in going to fires, or that plaintiff knew when he boarded the truck on the night of the accident that same would proceed at any particular rate of speed, was inadmissible to prove contributory negligence upon the part of plaintiff at the time of the accident.
4. Negligence--Imputed Negligence--Firemen--Driver of Truck. Where plaintiff and another were riding upon the rear of a truck which was being driven at a high rate of speed to a fire, and plaintiff had no voice in the selection of the driver, and no control over his actions or the speed of the truck, but was required by his duties to mount thereon and proceed to the scene of the fire upon an alarm being given, and render such assistance as was possible, and while riding thereon a collision occurred between said truck and a street car, resulting in injuries to plaintiff, the negligence, if any, of the driver of said truck cannot be imputed to plaintiff.
5. Damages--Physical Examination--Power of Court. Where plaintiff in an action for damages for personal injuries exhibits a portion of his body to the jury, and physicians called by him testify as to the nature and extent of his injuries, and plaintiff offers to submit to an examination by any physician or board of physicians named by the court other than those in the employ of defendant, who are shown to have been employed by the defendant and who are to receive $ 25 per day for testifying in the case, it is not error for the court to refuse to require plaintiff to submit to an examination by the physicians employed by defendant. Thacker, J., dissenting in part.
John W. Shartel and Burke Shartel, for plaintiff in error.
Harris, Nowlin & Singleton and D. K. Pope, for defendant in error.
¶1 Defendant in error brought suit in the district court of Oklahoma county against plaintiff in error for damages for personal injuries alleged to have been sustained in a collision between one of defendant's street cars and a gasoline automobile truck upon which he was riding to a fire in Capitol Hill, one of the suburbs of Oklahoma City, at about 10 o'clock p. m. May 17, 1912. The parties will be designated as they appeared in the trial court. The collision occurred at the crossing of Robinson and Poplar streets about two blocks south of the steel bridge across the North Canadian river. Robinson street runs north and south, and is the principal street from the business section of Oklahoma City to Capitol Hill, being paved the entire distance, and is the route usually traveled by the fire department when making runs in answer to fire alarms in the south portion of the city. Poplar street runs east and west, and the tracks of the defendant company run along said street at the intersection thereof with Robinson street. The truck upon which plaintiff was riding at the time of the injury was being driven by the captain, the regular driver being off duty that night, and was proceeding south, while the street car was proceeding east. Plaintiff and another fireman were standing on the back part of the truck where a step and railing to hold to was provided. The evidence as to the speed of the truck varies. No question is made by the defendant as to the negligence of the crew in charge of its street car at the time of the accident, but error is assigned upon the action of the court in excluding from consideration of the Jury the alleged negligence of the driver of said truck, and evidence as to whether the plaintiff had been accustomed to riding upon said truck theretofore at a similar rate of speed, and in the giving of certain instructions and refusing certain requested instructions offered by defendant, and in refusing to require the plaintiff to be stripped before the jury and permit certain physicians selected by defendant to make an inspection of his person and testify in reference thereto. The first 16 assignments of error are grouped together by counsel and considered as presenting three questions for consideration by this court. First, that notwithstanding the ordinance giving the fire department the right of way its apparatus must be operated with ordinary care and at a rate of speed consistent therewith. Second, that the operation of the auto truck at the rate of speed at which it was going over a crossing with an obstructed view makes a case of contributory negligence, which should have been submitted to the jury, unless the plaintiff was in no way responsible for such negligence. Third, that the madcap pace at which the truck was going was a steady practice participated in by plaintiff for four or five months, whereby he adopted the negligence of the driver and made it his own. Evidence was admitted without exception that plaintiff had been riding upon this particular truck for several months, and that it had been operated in the same manner and at the same speed. On cross-examination of plaintiff, he was asked whether he had previously ridden upon the truck when going at the same rate of speed; and he was also asked the specific question if he did not know when he got on the machine that evening, it would, in all reasonable probability, be operated at its full capacity. Objection was sustained to these questions and exceptions reserved. In his instruction upon contributory negligence, the court told the jury that in considering the question of contributory negligence, they should consider only plaintiff's conduct in view of all the circumstances in evidence, and that the acts or omissions of the driver of the truck could not be imputed to or considered as the acts of plaintiff; and, further, that the mere fact that a fire truck or fire apparatus was traveling rapidly when en route to a fire was not negligence of itself, and that if they found the defendant was negligent in causing or permitting one of its street cars to collide with the fire truck upon which plaintiff was riding, and that as a natural and proximate result thereof, considering the speed of the truck and the character of the collision, the fire truck collided with the curbing or with a telephone pole, and the plaintiff was thrown from the truck and injured, and that his injuries were the direct, natural, and proximate result of the negligence of defendant, and that plaintiff was himself free from negligence directly causing or contributing to his injuries, then plaintiff was entitled to recover, regardless of the rate of speed at which such fire truck was being driven at the time of the collision. Exceptions were saved to the giving of these instructions, and defendant presented several requests, which were refused, embodying the proposition that the fire department had no right under the law to run their fire apparatus at a rate of speed or otherwise operate same in a manner which would ordinarily be dangerous to and expose the lives and persons of other people lawfully using the street in the exercise of due and ordinary care to destruction or injury, and that if plaintiff in the performance of his duties as fireman had been in the habit of riding said truck to fires prior to the date of the accident, and the same had been operated on previous occasions at about the same rate of speed at which it was going at the time of the accident, then the plaintiff could not recover. The ordinary rules which are almost universal in their application regulating the conduct of persons engaged in the pursuit of their own private business or personal pleasure are not controlling in the case of members of a fire department answering an alarm of fire. Michael v. Kansas City Western R. Co., 161 Mo. App. 53, 143 S.W. 67; Kansas City v. McDonald, 60 Kan. 481, 57 P. 123, 45 L. R. A. 429; Houston City R. Co. v. Richart (Tex. Civ. App.) 27 S.W. 918; Same v. Reichart, 87 Tex. 539, 29 S.W. 1040. In some states this distinction has the sanction of legislative regulation expressed in the form of a state statute or municipal ordinance, as is the case here. McBride v. Des Moines City R. Co., 134 Iowa 398, 109 N.W. 618; Geary v. Met. St. R. Co., 84 A.D. 514, 82 N.Y.S. 1016; New York v. Met. St. R. Co., 90 A.D. 66, 85 N.Y.S. 693. Fire is known to be one of the most useful and beneficial of human agencies, but it is also known to be one of the most destructive, and in case of a fire, unless prompt and heroic measures are resorted to, it frequently gets beyond control; and especially in large cities its toll of property runs into the millions, and the human lives...
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