Okla. Union Ry. Co. v. Lynch
| Decision Date | 30 June 1925 |
| Docket Number | Case Number: 14869 |
| Citation | 115 Okla. 146,1925 OK 565,242 P. 176 |
| Parties | OKLAHOMA UNION RY. CO. v. LYNCH. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error--Review--Verdict on Conflicting Evidence.
In an action at law, where the evidence is conflicting, this court will not review the evidence to ascertain where the weight of the evidence lies; and, if there is evidence reasonably tending to support the verdict, it will not be set aside.
2. Street Railroads--Negligence of Speed--Jury Question.
In a town or city where there is no ordinance regulating the rate of speed at which street cars shall be operated, it is for the jury to determine in the given case whether or not the speed at which the street car was operated was negligence under all of the facts and circumstances.
3. Negligence--Contributory Negligence for Jury.
The question of contributory negligence cannot be made a question of law for the court by demonstration or otherwise under our Constitution, article 23, section 6, but in all cases is a fact for the jury to determine, and the finding of the jury upon this defense is conclusive upon the court.
4. Appeal and Error--Invited Error--Evidence.
Where defendant cross-examines a witness on an issue not tendered by plaintiff's petition and requests an instruction embodying such issues and the court gives the instruction with slight modification, without objection on the part of of the defendant, he cannot complain of the evidence on such issue.
5. Street Railroads--Dangerous Crossings--Lack of Safeguards as Negligence--Instruction.
Where the evidence shows the street crossing the car track is in a populous neighborhood and greatly traveled and the view of the track and approaching cars is obstructed and other facts of extraordinary danger, it is not error for the court to instruct the jury that it is a question of fact for them to determine whether or not the defendant was negligent in not maintaining gates, a flagman, a system of automatic bells, or some other appliance to warn travelers of the approach of cars, although no statute or city ordinance required these precautions.
6. Appeal and Error--Harmless Error--Erroneous Instruction--Personal Injury.
Where there is no evidence of permanent injury, and the court instructs the jury that they may take into consideration such injury, and the verdict returned is not excessive, and defendant failed to ask for a correct instruction, he cannot complain on appeal and the error will be considered as harmless.
7. Appeal and Error -- Objections Below--Competency of Witness.
In order to raise the question of the competency of the witness to testify, the objection must so state, otherwise the question of competency cannot be urged on appeal.
Commissioners' Opinion, Division No. 3.
Error from District Court, Creek County; John L. Norman, Judge.
Action by W. D. Lynch against Oklahoma Union Railway Company, for damages on account of personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.
Biddison & Campbell and J. H. Grant, for plaintiff in error.
Streeter Speakman, for defendant in error.
¶1 Defendant in error, as plaintiff, brought suit against the plaintiff in error, as defendant, for damages on account of personal injuries sustained in a collision of a Ford automobile, in which he was riding with a street car of said defendant, at the intersection of Cobb avenue with the railway track in Sapulpa, Okla. For convenience the parties will be referred to as they were in the trial court.
¶2 Plaintiff filed his petition on November 23, 1922, in which he stated, in substance, that the accident and injury took place on August 8 1922; that he was riding in the Ford touring automobile owned and driven by his daughter Lillian Miller; that they were traveling along Cobb avenue westward, between the Burnett Refinery addition and the Moman addition to the city of Sapulpa, about five o'clock in the afternoon; that the railroad of defendant crosses Cobb avenue running in a southwesterly and northeasterly direction; that an embankment is thrown up about six feet upon which said railroad track is laid; that just north of Cobb avenue, on the right-hand side, as you travel west toward the crossing, and a short distance from the embankment and immediately adjoining the said embankment of said railroad, there is a small frame dwelling house, owned, controlled and possessed by defendant; that this dwelling house shuts off the view of the railroad and approaching cars from the northeast; that there are other buildings and trees along the north side of said street and just east of said frame building, all of which shut off the view to approaching street cars from the northeast; that the company is negligent in maintaining the said dwelling house so that cars cannot be seen approaching from that direction; that Cobb avenue is a very public street and thickly traveled; that the defendant is negligent in failing to institute and maintain some electric or automatic bell or signal device or system or watchman at said crossing or any other means of warning to persons crossing the railroad at this place; that on account of the negligence of the defendant, as above described, preventing plaintiff from seeing the approach of the street car, and from having any warning of danger, and for the further reason that at the time the automobile was traveling up the said grade in a careful manner to cross the said track, the defendant's street car, approaching from the northeast, came at a rapid rate of speed and without sounding a whistle or giving any warning of its approach until very near the crossing, and while the said automobile was in the act of going over the track, the said car struck the same and crushed the front part of it and threw the plaintiff out about ten or fifteen feet and injured him, wrenching his back, hips, and left arm, and sent him to the hospital for repairs, and resulting in permanent injuries; that he had an earning capacity before he was injured of about $ 200 a month, which he had lost; that he was out $ 36 for medical attention and was not able to work or earn wages; that he suffered great mental anguish as well as physical pain, and he asked for judgment in the sum of $ 10,036.
¶3 The defendant filed its answer, consisting of a general denial, and further pleaded contributory negligence. The issues were tried to a jury and a verdict returned in favor of plaintiff in the sum of $ 2,500, and judgment was rendered accordingly, from which the defendant has prosecuted this appeal.
1. In the first place, defendant contends that the evidence was not sufficient to go to the jury and not sufficient to sustain the verdict.
¶4 An examination of the record discloses that the evidence was very conflicting as to the rate of speed the interurban car was traveling, ranging from ten to 35 miles an hour, also as to whether or not any signal warning was given before the three sharp whistles about the time the collision occurred, the witnesses for plaintiff testifying that there was none and the witnesses for defendant testifying there was. The motorman said he sounded the whistle when about two blocks away, and the witness Patterson, who watched the street car come from the northeast and was looking for his mother on the same, and who was near the place where the motorman said he sounded the whistle testified that there was no whistle until the three whistles just before the car struck the automobile. It was not disputed that there was no watchman or signal device maintained by the street car company to give warning of danger in crossing the car track. The defendant did not demur to the evidence of plaintiff, but answered it with testimony, and then asked the court to instruct the jury to return a verdict for defendant, which request was properly refused by the court. The questions involved under the conflicting evidence and all the evidence in the case were for the jury to determine.
¶5 In the case of Kugler v. White, 91 Okla. 130, 216 P. 903, a case similar to this one, the court lays down this rule in the syllabus:
"Where a cause is submitted to a jury, they are the triers of the facts, and it is not the province of the appellate court to weigh the evidence, and if there is any evidence in the record reasonably tending to support the verdict and judgment, and no substantial errors appear upon the trial, the judgment should not be disturbed on appeal."
¶6 Also, in the case of Mitchell v. Aaronson, 91 Okla. 82, 216 P. 102, the same rule is stated, as follows:
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