St. Louis & S. F. R. Co. v. Teel

• Decision Date: 12 April 1921
• Docket Number: Case Number: 10024
• Citation: 198 P. 78,1921 OK 135,82 Okla. 31
• Parties: ST. LOUIS & S. F. R. CO. v. TEEL.
• Court: Oklahoma Supreme Court

1921 OK 135

198 P. 78

82 Okla. 31

ST. LOUIS & S. F. R. CO. v. TEEL.

Case Number: 10024

Supreme Court of Oklahoma

Decided: April 12, 1921

Syllabus

¶0 1. Negligence--Question for Court or Jury. Where, from the facts shown by the evidence, although undisputed, reasonable men might dray different conclusions respecting the question of negligence, such question is properly for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence is ever considered as one of law for the courts.

2. Appeal and Error--Questions of Fact--Review--Question of Trespasser or Licensee. Where, as in the case at bar, the question whether the injured person was a trespasser or a licensee was properly submitted to the jury on conflicting evidence under instructions which correctly stated the law, the verdict of the jury and the judgment rendered thereon will not be disturbed on appeal.

3. Railroads--Injuries to Persons Near Track--Sufficiency of Evidence--Instructions--Harmless Error. Record examined, and held: (1) That the evidence reasonably tends to support the verdict of the jury and the judgment rendered thereon. (2) That the instructions to the jury given by the court fairly cover the issues of law joined by the pleadings and evidence. (3) That the remaining errors complained of are either without merit or are harmless under section 6005. Rev. Laws 1910.

W. F. Evans, R. A. Kleinschmidt, and J. H. Grant, for plaintiff in error.

C. Caldwell, for defendant in error.

KANE, J.

¶1 This was an action for damages for personal injuries, commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below. Hereafter, for convenience, the parties will be called "plaintiff" and "defendant," respectively, as they appeared in the trial court. The record discloses that on the date of the injury Irene Teel, the injured person, and her mother were proceeding by foot from one point to another of the city of Vinita and had reached the intersection of the Katy and Frisco railways, where they were standing in a traveled way waiting for a Katy freight train to clear the crossing, which would enable them to continue their journey to their home in the northeast part of the city, which was their objective, when the injury occurred. At this point the Katy tracks run almost due north and south and the Frisco tracks run almost due east and west. The injured person and her mother were Standing immediately south of the Frisco tracks and a few feet west of the Katy tracks. While thus standing a Frisco passenger train, moving west, ran into the Katy freight train, which was moving north over the crossing, turning over a box car loaded with lumber upon the plaintiff and her mother, killing the latter and very seriously injuring the former. The specific act of negligence charged against the defendant is stated in plaintiff's petition as follows:

"That the agents, officers, servants and employees of the said defendant and who was in charge of said passenger train could see, did see, and by the use of ordinary care should have seen and could have seen the said freight train on said crossing at least one-half mile east of said crossing, and could have stopped and should have stopped said passenger train before reaching said crossing and before it struck said freight train, but they wantonly, carelessly, negligently and with gross negligence failed, refused, and neglected to stop said passenger train until after it struck the said freight train and caused said injury to the said Irene Teel in the manner aforesaid."

¶2 The answer of the defendant set up: (1) A general denial: (2) contributory negligence; and (3) that the plaintiff was a trespasser on the premises of the defendant, and therefore the only duty which the defendant owed her was to refrain from wantonly and willfully injuring her while upon its premises. The reply was a general denial. Upon the issues thus joined there was trial to a jury, which returned a verdict in favor of the plaintiff, upon which judgment was duly entered, to reverse which this proceeding in error was commenced. Counsel for defendant summarize their grounds for reversal in their brief as follows:

(1) The verdict of the jury is not sustained by sufficient evidence.

(2) Error of the court in overruling said plaintiff in error's demurrer to the evidence of defendant in error.

(3) Error of the court in refusing to direct a verdict in favor of the defendant at the close of all the evidence.

(4) Error of the court in refusing certain instructions requested by defendant and in refusing to give each of said instructions.

(5) Error of the court in giving to the jury certain instructions and in giving each of said instructions, which were duly excepted to by plaintiff in error.

(6) Error of the court in refusing to submit to the jury defendant's defense of contributory negligence and in refusing to instruct the jury on the question of contributory negligence as raised by the defendant's answer.

¶3 As the first, second, and third assignments of error question the sufficiency of the evidence to support the verdict of the jury and the judgment rendered thereon, they may be considered together. As we view the record there is no substantial conflict in the evidence of the respective parties on the merits on any material point. Both parties concede that the injury occurred substantially as herein before set out, and it is not seriously questioned that these facts, standing alone, make a case which entitles the plaintiff to recover. Without contradicting the evidence, adduced by the plaintiff, the defendant relies for a defense upon certain evidence introduced an its behalf which, it says, conclusively shows that the injury was the result of an unavoidable accident. This defensive evidence, which for the purpose of the question now under consideration we will assume was uncontradicted is summarized from the testimony of the engineer in charge of the passenger train and shows substantially the following state of facts:

The engineer testified that when his train was within about a half mile of the Katy crossing he heard an unusual noise somewhere about his engine and immediately shut off the steam; that almost immediately thereafter he heard a loud report, which proved to be caused by the bursting of the steam pipe which runs from the valve to the lubricator; that when this pipe broke the steam was thrown against the window of the cab a foot or a foot and a half from his face, and it struck with such force that it glanced from the window slightly scalding his face, whereupon he jumped from his seat and ran to the gangway to get some air: that upon reaching the gangway he looked ahead and saw the Katy freight train on the crossing and immediately ran back to the cab to turn the air brake valve which would stop the train, but found it was so hot he could not do this; that during his effort to find the air brake he saw the lever, which he pulled into reverse, thus tending to slow the train a little, not a great deal. In answer to the question. "Could you have done anything else to have brought this train to a stop than what you did?" he answered, "Not a thing; nothing I could do to stop it." After throwing the lever into reverse the engineer jumped from his engine and escaped unhurt.

¶4 The testimony of this and other witnesses described the gangway, the engine and cab location of the whistle and automatic bell and how the train was equipped with air brake, location of lubricator and brake valve, and their functions. This evidence discloses that the air brake valve was right in front of where the engineer was sitting when the explosion occurred; that his knee was right against the brake valve on this engine and a little higher than his knee: that the brake...