Oklahoma Ry. Co. v. Overton
| Citation | 12 P.2d 537,158 Okla. 96,1932 OK 353 |
| Decision Date | 03 May 1932 |
| Docket Number | 20569. |
| Parties | OKLAHOMA RY CO. v. OVERTON. |
| Court | Supreme Court of Oklahoma |
Withdrawn Corrected, Refiled and Rehearing Denied June 21, 1932.
Syllabus by the Court.
1. The rule of the doctrine of last clear chance Pennsylvania R. Co. v. Swartzel (C. C. A.) 17 F (2d) 869.
2. To establish liability under the so-called humanitarian doctrine, or doctrine of the last clear chance, it is necessary to prove: (1) That the person was in a place of danger; (2) that he was seen in such place of danger by the owner or an agent or servant of the owner; and (3) a failure thereafter to use ordinary care to avert injury. Gypsy Oil Co. v. Ginn, 152 Okl. 30, 3 P.2d 714.
3. When a verdict is extremely excessive and reasonably cannot be stripped of the bias and prejudice which forms the basis of such excessive amount, a new trial should be granted.
Appeal from District Court, Oklahoma County; Geo. W. Clark, Judge.
Action by Ora Overton, by his guardian Effie Overton, against the Oklahoma Railway Company. Judgment for plaintiff, and defendant appeals.
Reversed and remanded.
Hayes Richardson, Shartel, Gilliland & Jordan and J. H. Vossbrink, all of Oklahoma City, for plaintiff in error.
Gomer Smith, O. A. Cargill, and M. J. Parmenter, all of Oklahoma City, for defendant in error.
This is an appeal from a judgment in the sum of $35,000 rendered by the district court of Oklahoma county on January 8, 1929, in favor of Ora Overton, and against the defendant, Oklahoma Railway Company, a corporation. This suit was instituted by plaintiff, a colored minor boy of four years of age, acting by and through his guardian, Effie Overton, to recover damages for personal injuries sustained by him as result of an accident occurring at a street intersection in Oklahoma City.
The petition alleges that on the evening of September 10, 1928, at about 5:30 p. m., plaintiff was proceeding in a westerly direction across Olie street at the intersection with Park avenue in said city; that defendant was driving and propelling an interurban car in a northerly direction on Olie street at a high and dangerous rate of speed, to wit, twenty five or more miles per hour; that it failed to keep said car under reasonable control upon entering said intersection; that the motorman failed to keep a reasonable and diligent lookout consistent with the safety of persons crossing the track of said defendant; that the motorman failed to stop said car or give any warning as the car approached the intersection where plaintiff was crossing the track on which defendant's car was being operated. Plaintiff then alleges the doctrine of last clear chance, in that the motorman carelessly and negligently failed to stop said car or to warn the plaintiff of the approach thereof, which he could have done in the exercise of ordinary care after he saw the plaintiff in a position of peril, approaching or upon said street car track; that, as a result of said negligence, plaintiff sustained severe injury to his head, leaving ugly and permanent scars; that plaintiff's left leg was cut off about two inches below the knee; and that his right knee received ugly cuts, all to his damage in the sum of $35,000.
The defendant filed a general denial, and alleged that its motorman was operating the car in a careful and prudent manner; that due and proper warning of its approach was given; that at all times the motorman had the car under reasonable control; and that, in spite of this care, plaintiff ran into the front end of the car.
A brief summary of the facts follows: On the evening alleged in the petition, the plaintiff and another colored boy about ten years of age were proceeding across Olie street at the intersection of Olie street and Park avenue; the boys apparently had been playing and were on an errand to a grocery store near by. The plaintiff started to run across Olie street on the north side of the intersection and double track of the defendant company running north and south on Olie street. At about the time plaintiff started to run across Olie street and towards the east rail of the east track, defendant's street car was some distance south of the south line of the intersection of Olie and Park avenue, which was being operated at approximately 15 miles per hour. The plaintiff, just before reaching the track, changed his direction and started running north and west, and in the same direction as the car. He was struck just north of the north line of the walk across the tracks on the north side of the intersection of defendant's car. After being struck, the defendant stopped its car, and plaintiff was about fifteen feet to the rear of the same, and parallel with the east rail.
The plaintiff sustained injuries as alleged in plaintiff's petition. The defendant company furnished the plaintiff medical and hospital treatment.
The defendant complains that the verdict is contrary to the law and evidence; that the court erred in its instruction as to the last clear chance, and that the verdict is excessive. Other assignments of error are urged by defendant, but we consider it unnecessary to discuss but two propositions, to wit, the instruction as to the last clear chance and the excessiveness of the verdict. The instruction complained of is as follows:
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