Schaff v. Daugherty
| Decision Date | 27 January 1925 |
| Docket Number | Case Number: 15280 |
| Citation | 1925 OK 66,112 Okla. 124,239 P. 922 |
| Parties | SCHAFF, Rec., v. DAUGHERTY, Adm'x. |
| Court | Oklahoma Supreme Court |
¶0 1. Jury--Statutory Duties of Jury Commission--Substantial Compliance.
Where the jury commission, under sections 3515 and 3516, Comp. Stat. 1921, make a jury list from the various townships of the county in proportion to the population, giving the postoffice address of each name, and head the list with the words "District Court Jury List," and two of said commissioners sign the list and deliver it to the court clerk, who files and records it and places the names in the district court jury box on separate slips of paper, and the list is thereafter certified by leave of court at the first term of the court after said list is made up, the provisions of the statutes are substantially complied with.
2. Same--Notification of Jury List--Sufficiency--Talesmen.
Under section 3520, Comp. Stat. 1921, jurors drawn from the box to serve at a term of the court should be notified by registered mail, but if otherwise notified and they report for service, it makes no difference to the litigants as to how they were notified to be present, just so they are present and are the same persons selected from the list to be present, and if for any good reason under section 3518, Comp. Stat. 1921, the number drawn and reporting are insufficient to fill the trial panel, talesmen or special venire may be resorted to.
3. Master and Servant--Liability for Negligent Death of Railroad Fireman--Sufficiency of Evidence.
In the wreck of a passenger train, caused by a washout from a rain storm, in which the locomotive turned over, killing the engineer and fireman, and suit is brought against the receiver of the railroad company for damages for the death of fireman, alleging negligence on the part of the conductor and engineer, in running the train without reasonable precaution to guard against dangers after being notified of the rain storm, and further alleging negligence on the part of the section foreman, in failing to inspect his section for dangerous waters and washouts as required by the rules of the company, and there is evidence to support the allegations, it is not error to refuse a requested instruction for judgment in favor of defendant.
4. Trial--Instructions -- Sufficiency as a Whole--Refusal of Requests.
Where the instructions of the court taken as a whole are sufficient to state clearly to the jury the issues in the case or any particular issue involved and the law applicable, it is not error to refuse to give requested instructions covering the entire case or any particular issue involved, even where the requested instructions are correct.
5. Master and Servant--Liability for Death of Railroad Fireman--Negligence of Other Servants--Wreck from Washout.
Where the undisputed facts show that a heavy rain storm had passed over a certain section of the railroad in charge of a section foreman, whose duty it was to guard against washouts by going over his section, day or night, to inspect it during or after heavy rains, and he failed to perform such duty, and the conductor and engineer, in charge of the passenger train running toward said section and before they reached it, were both warned by telegram of the rain storm and ordered to "run very carefully and look out for places liable to wash," and there is evidence tending to show that they disregarded the order and the train wrecked where the rain storm washed out the track on said section, held, the evidence sufficient to show negligence on the part of the defendant as proximate cause of the wreck and consequent death of the fireman.
6. Trial--Instructions--Correcting Errors.
Where the court gives the jury an erroneous instruction on any issue or on some matter not in issue, the court may correct the error by another charge in immediate connection therewith explaining the error in such language that the jury is given to understand what the error is and that the law announced is erroneous and has no application to the case on trial.
7. Master and Servant--Federal Employers' Liability Act--Contributory Negligence--Instruction Approved.
An instruction where contributory negligence is involved, under the Federal Employers' Liability Act, in the following language, is substantially correct:
"You are further instructed that if you shall find that the deceased was guilty of negligence which contributed to cause his injury, and that the defendant was also guilty of negligence which contributed, with the negligence of the deceased, to cause injury to him, then it is your duty to diminish the amount which, in your opinion, under the evidence, you believe that the plaintiff herein will be entitled to recover by reason of the negligence of the defendant, by an amount in proportion to the amount of negligence attributable to the deceased."
8. Appeal and Error -- Conclusiveness of Verdict--Amount of Damages for Death.
The amount of damages recoverable in a death case is always a question of fact for the jury, and the verdict of the jury on appeal will not be disturbed unless it appears from the record that the jury was swayed by passion or prejudice against the losing party, and unless the recovery is so large as to shock the sense of justice.
Commissioners' Opinion, Division No. 3.
Error from District Court, Pawnee County; Edwin R. McNeill, Judge.
Action by Ella Daugherty, administratrix and personal representative of the estate of Emery Garfield Daugherty, deceased, against Charles E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company, for damages. Judgment for plaintiff, and defendant brings error. Affirmed.
M. D. Green and H. L. Smith, for plaintiff in error.
Tautges & Wilder, Robert J. McDonald, and Thurman S. Hurst, for defendant in error.
¶1 The case under consideration is an appeal from the judgment of the district court of Pawnee county in an action wherein the defendant in error, Ella Daugherty, as administratrix of the estate of Emery Garfield Daugherty, deceased, was plaintiff, and defendant in error, Charles E, Schaff, as receiver of the properties of the Missouri, Kansas & Texas Railway Company, was defendant. The parties will be designated herein as they appeared in the trial court.
¶2 The undisputed facts in the case are substantially as follows:
On May 2l, 1922, defendant's south-bound passenger train number 3, running on the main line of his railroad system from Parsons, Kan., through Oklahoma and into Texas, left Parsons, Kan., about 8 o'clock p. m., and was a night train through Oklahoma. The train was in charge of Winfield Scott Hall, as conductor, and -- -- Harshfield, as engineer, and plaintiff's deceased as fireman. It was a night of general rain from Kansas to Texas in the territory through which the railway extended. At some places the downpour of rain was greater than at others, but a general rain extended along the entire way. When the train reached Vinita, where it stopped about five minutes, the conductor and engineer received a message from the station in Muskogee to look out for danger, which was as follows:
¶3 The train left Vinita about 10 o'clock, and at a point about four miles from Vinita, and about 1,000 feet south of White Oak creek it was wrecked. The track was washed out or gave way and the engine was derailed and turned over, killing the engineer and fireman. A heavy cloud of wind and rain had passed over that neighborhood before the train reached it and it was raining hard at the time of the wreck; water was all around the track; the roadbed at this place was lower than at other points in that vicinity, and it was ballasted with chat at the place of the accident instead of crushed rock. There is some conflict in the evidence as to the speed of the train at the time of the wreck. The conductor thought it was running about 15 miles per hour, but other witnesses estimated its speed at from 25 to 40 miles an hour.
¶4 The rules of the railroad, governing the operation of trains during rains and storms, in force at the time, were as follows:
¶5 Another rule in force as to the duty of the track or section foreman was as follows:
¶6 The section foremen on the section where the accident took place and on the adjoining sections...
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