Schaff v. Richardson
| Decision Date | 06 April 1926 |
| Docket Number | Case Number: 15279 |
| Parties | SCHAFF, Ree., v. RICHARDSON, Adm'x. |
| Court | Oklahoma Supreme Court |
¶0 1. Master and Servant--Death of Railroad Brakman--Negligence--Allegations and Proof. In an action for personal injury resulting in death, allegations of negligence in handling, operating, and controlling defendant's "line and system of railroad", followed by proof that a certain train was annulled between two designated stations on the line, but that said train was not mentioned in an order annulling trains between such points, the train so annulled but omitted from the annulment order being then dispatched in the opposite direction on the regular schedule of one of the trains named in the annulment order, resulting in a collision with the train on which deceased was working as rear brakeman, were sufficient to raise an issue of fact for determination by a jury on the question of defendant's negligence, regardless of whether there was negligence on the part of the crew of either of the trains at the time of the collision.
2. Trial--Instructions--Failure to Define Issues--Copying Pleadings. In a trial to a jury, where the court fails and refuses, over objection and exception of defendant, to define to the jury the issues raised by the pleadings, but instead copies in full such pleadings and leaves it to the jury to determine for itself what issues shall be settled by its verdict, such action by the trial court is prejudicially erroneous, especially where the pleadings cover many pages of the typewritten record, raise numerous issues, and present close technical questions about which laymen can have no accurate or professional knowledge. It is the duty of the trial court to define and properly limit the issues submitted to the jury for determination.
3. Negligence--Contributory Negligence -- Erroneous Failure to Define Fully in Instruction. An instruction on contributory negligence which omits one of the essential elements heretofore determined by this court to be necessary to a correct instruction, and the refusal to give a correct instruction thereon requested by defendant, is erroneous.
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 Before taking up the propositions which involve the merits of the case, two preliminary matters must be considered. Trial of the case commenced September 24, 1923, but before the jury was selected defendant interposed a motion to quash the jury panel, assigning four grounds of objection thereto, as follows:
"First, that the panel was not selected, certified, drawn, summoned or impaneled according to the statutes; second, because the defendant is entitled to a trial by jury drawn in accordance with the statutes; third, because the court was without jurisdiction to summon talesmen until after the regular jury list had first been selected, certified, drawn, and summoned, according to the statute, and had proved insufficient; fourth, because the panel was not selected from the body of the county; and, fifth, because the defendant was deprived of a substantial right in violation of the Constitution of Oklahoma and the Constitution of the United States."
¶2 This motion, after a hearing, was overruled by the trial court and exception reserved. In the case of Schaff v. Daugherty, 112 Okla. 124, 239 P. 922, this identical question was determined by this court adversely to the contentions of defendant. The question was raised in that case by the same defendant at the same term of court and against the same jury panel, so that the decision there is controlling here. The second preliminary question presented involves the correctness of the trial court's ruling in excluding evidence offered by defendant to show the terms of the contract of employment between plaintiff and certain attorneys appearing in her behalf, the contention being that the contract is champertous under the provisions of Comp. Stat. 1921, secs. 1691 and 1695. In this connection it is insisted that the trial court should have admitted the proof and sustained defendant's motion to dismiss the action without prejudice. These sections were originally in the Statutes of 1890 as sections 2044 and 2047, respectively, and were taken from the statutes of Dakota. No decision of this court has been found construing these sections, but the Supreme Court of North Dakota, in a well considered opinion and in opinion on rehearing, denied such effect to these sections as is here contended for by defendant. Woods v. Walsh et ux. (N. D.) 75 N.W. 767. But aside from this, the Legislature of this state in 1909, while the above sections were in full force and effect, enacted what is now section 4101, which authorizes an attorney to contract for a percentage of the proceeds of a client's cause of action, "not to exceed 50 per centum of the net amount" recovered. Under this section it cannot be material who advances the costs and expenses of the action, since the rights of the parties under the contract must be determined by the "net amount" recovered. No offer of proof having been made that the contract here involved exceeded the statutory limit of 50 per centum of the net amount recovered, the trial court did not err in excluding the proffered evidence nor in overruling defendant's motion to dismiss the action without prejudice.
¶3 Upon the merits of the case several propositions are presented and argued, the substance of the contentions being that the trial court erred in submitting to the jury the question of alleged negligence in the operation of train No. 224, that the trial court erred in failing and refusing to define the issues to the jury, that the trial court erred in its instructions to the jury on the question of contributory negligence, and that it likewise erred in refusing certain instructions requested by defendant. As all of these questions are related and interdependent and as each goes to the merits of the case, they may best be considered together. In substance, the facts disclosed by the evidence may be fairly stated thus: Tulsa is the headquarters of one of the branch line divisions of the Missouri, Kansas & Texas Railway Company. West of Tulsa on this division, and 33 miles distant, is the town of Osage, while Muskogee is 52 miles southeast of Tulsa. Muskogee and Osage were the termini of the operations involved in this action. Wybark is a station about 8 miles north of Muskogee, and is the place where the Tulsa division branches off from the main line, while Alsuma station is located about the same distance southeast of Tulsa. Train No. 224 is a regular daily passenger train on this division, and by the time card then in effect was scheduled to leave Tulsa at 5:00 a. m., pass through Alsuma and Wybark and arrive at Muskogee at 6:40 a. m. In the month of July, 1922, there were storms and excessive rainfall over this section of the state, resulting in washing out or weakening a bridge near Osage, so that passenger train No. 224 was unable to proceed from Osage to Tulsa on the morning of the 19th. Extra engine No. 613, and its crew, was then at Muskogee, and at 2:30 a. m., July 19th, the train dispatcher at Tulsa ordered this extra engine and crew to proceed from Muskogee to Tulsa, that order being train order No. 7, standard form 31, and reading:
¶4 At the same time that the above running order was delivered to the conductor of extra No. 613, he was also given an order annulling certain trains on the division, being train order No. 2, standard form 31, and reading:
¶5 Train No. 223 was a regular daily westbound passenger train running from Muskogee to Osage, but its time card schedule is not disclosed by the record further than to show that it leaves Muskogee at 11:45 p. m., and that after reaching Osage it was customary for it to return to Muskogee as No. 224. On the 19th it was stopped at Tulsa as it could not proceed to Osage, and started its return to Muskogee from Tulsa on the schedule of No. 224 at 5:00 a. m. Extra train No. 613 collided with this passenger train about 5:40 a. m. near Alsuma station, Rear Brakeman Richardson of the extra train being killed. The railroad track is traight for a long distance in both directions from the point of collision, but on this morning the range of vision of the train crews was limited to a distance of 150 to 200 feet by a dense fog which was not penetrable by the headlights to a greater distance. Defendant's first complaint against the instructions is that the trial court erred in submitting to the jury the question of defendant's negligence in the operation of train No. 224 from Tulsa to Muskogee on the morning of the 19th, the contention being that as No. 224 was a regular daily train with a regular schedule shown on the time card, and being a superior train, with right of a clear track over all other trains, the manner of its operation would be no element of primary negligence until the danger of collision became apparent to those in charge of that train.
¶6 In support of this contention defendant relies on the case of Missouri, K. & T. R. Co. v. Lenahan, 68 Okla. 73, 171 P. 455. If the facts alleged and shown by the evidence upon the question of primary negligence in the instant case related solely to the manner in which train No. 224 was being operated by its crew, just prior to and at the time of the collision, the above-cited case would be very persuasive, if not absolutely controlling, upon the question of this...
To continue reading
Request your trial