St. Louis & S. F. R. Co. v. Hart
| Decision Date | 13 October 1914 |
| Docket Number | Case Number: 5507 |
| Citation | 146 P. 436,1914 OK 498,45 Okla. 659 |
| Parties | ST. LOUIS & S. F. R. CO. v. HART. |
| Court | Oklahoma Supreme Court |
¶0 1. NEGLIGENCE--Proximate Cause--Proof. The plaintiff in a civil cause is not required to prove his cause beyond any reasonable doubt. If he makes it appear to be more probable that the injury came in whole or in part from the acts of negligence alleged than from any other cause, that is sufficient.
2. RAILROADS--Crossing Accident--Neglegence--Violation of Ordinance. The failure of a railway company to comply with a municipal ordinance requiring safety gates to be erected at points where the tracks of the railroads entering the city cross certain streets, and to employ suitable persons to operate the same, constitutes a violation of positive law, and culpable negligence; and evidence of such violation is sufficient to carry to the jury the case of a person injured by attempting to cross a spur track on a street at such crossing who is struck by a string of cars backed over such crossing by a switch engine; there being no light exposed at the forward end of the first car, nor a brakeman or other employe of the railway company stationed thereon or anywhere about such crossing, or bell rung or whistle sounded, to give warning of the approach of the train.
3. RAILROADS--Crossing Accident--Violation of Ordinance--Duty of Pedestrians. Where one approaching a railway crossing where safety gates are required by city ordinance, in the absence of evidence to the contrary, he will be justified in presuming that the railway company has complied with the ordinance, and will not be held to the same imperative duty of looking and listening as when he approaches a crossing where there are no gates and none are required.
4. RAILROADS--Crossings--Safety Gates--Ordinance. A city ordinance requiring every railway company operating lines of railroad across certain streets of the city to erect and maintain safety gates at said streets on each side of said railroad tracks, and to employ suitable persons to operate the same, construed, and held: (1) That it applies to all the street crossings created by the intersection of said lines of railroad and said streets, whether created by the main line or spur tracks of such railway company; (2) that said ordinance is reasonable; (3) that it is a proper exercise of the police power of the city.
5. NEGLIGENCE--Contributory Negligence--Question for Jury. 'Section 6, art. 23, Williams' Constitution, provides that: "The defense of contributory negligence * * * shall in all cases whatsoever be a question of fact and shall at all times be left to the jury."
6. RAILROADS--Crossing Accident--Evidence. In an action for personal injuries against a railway company, where want of ordinary care in maintaining a street crossing in a reasonably safe condition is alleged, it is error to admit evidence of the condition of the crossing some eight or nine weeks after the injury was inflicted without evidence that the crossing was substantially in the same condition at the time of the injury as at the time to which the testimony relates.
7. TRIAL--Instructions--Evidence. An instruction predicated upon such evidence is also erroneous.
8. APPEAL AND ERROR--Harmless Error--Instructions--Evidence. Section 6005, Rev. Laws Okla. 1910, provides that no judgment shall be set aside on the ground of misdirection of the jury, or the improper admission or rejection of evidence, unless in the opinion of the Supreme Court, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a violation of a constitutional or statutory right of the aggrieved party.
9. DAMAGES--Personal Injuries--Excessive Recovery. After an examination of the entire record the court is of the opinion that a verdict for $ 10,000 is so excessive as to amount to a miscarriage of justice, which was probably the result of the actions of the trial court, held to be erroneous, and that the same should be set aside and a new trial granted, unless a remittitur is filed for all in excess of $ 5,000.
W. F. Evans and R. A. Kleinschmidt and J. H. Grant, for plaintiff in error.
A. F. Moss and Ed Crossland and M. E. Turner and V. E. McInnis, for defendant in error.
¶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. The injuries for which damages are claimed were inflicted upon the plaintiff at the intersection of Hudson street and a spur or industrial track of the defendant company in Oklahoma City. This spur leaves the main line a few blocks west of Hudson street, and terminates about a block and a half east thereof between Harvey and Robinson streets. It is used in serving shippers owning buildings along an alley which runs east and west along the spur, and for no other purpose. Plaintiff alleges that he was walking south on the west side of Hudson street, and that when he was about to cross the spur track he heard the noise of an engine or train; that he was not positive whether the train was coming toward or going from him; that when he first heard the noise he was within 10 feet of the track and kept going until he got upon the track, when he discovered for the first time that the train was coming toward him; that thereupon he made a quick turn to draw back, but, in doing so, his left foot slipped into the space between the rail and the crossing plank provided for the flanges of the wheels; that when he first saw the train approaching it was 10 or 15 feet from him; that the train consisted of a string of box cars that were being slowly backed east by a switch engine over the crossing for the purpose of coupling onto other cars east of the crossing; that while his foot was fastened as above described the forward car ran upon it and crushed it so that amputation above the ankle became necessary; that after his foot became fastened between the rail and the plank he attempted to unlace his shoe with his right hand, and the fingers of that hand were also injured by the wheels. The specific acts of negligence alleged are: (1) Defect in the crossing which caused the plaintiff's foot to become fastened between the rail and the plank; (2) that no bell was rung or whistle sounded to warn him of the approach of the train, nor was there a light exposed or a brakeman stationed upon the forward end of the approaching car; (3) that no safety gates were maintained or watchman employed at the crossing, although an ordinance of the city required gates to be maintained and watchmen to be employed at said crossing. The defense was: (1) A general denial; (2) contributory negligence; (3) that Ordinance No. 286, pleaded and set out in the plaintiff's petition, is not intended to, and does not, require the defendant to construct gates and to employ watchmen to operate the same across Hudson street at the point where said street is crossed by the defendant's spur track; that if said ordinance does require the defendant to construct and maintain gates across said street at said place, and to maintain a watchman there, and to construct gates at all such crossings named in said ordinance, that said ordinance is unconstitutional and void, and is not a reasonable exercise of the police power of said city, and that said ordinance is in conflict with the Constitution of the United States. Upon trial to a jury there was a verdict for the plaintiff in the sum of $ 10,000 to reverse which this proceeding in error was commenced. The grounds of reversal presented by counsel for plaintiff in error in their brief are: (1) That their demurrer to the evidence should have been sustained, for the reason that the plaintiff's own evidence, viewed by the light of the physical facts, conclusively shows that the injuries of which he complains could not have been inflicted in the manner claimed; (2) that, even if the plaintiff's theory is assumed to be true, the proximate cause of his injuries was negligently stepping in front of a moving train without taking the ordinary precautions to determine whether it was coming toward or going from him; (3) error in admitting certain evidence over the objections of the defendant; (4) error in excluding competent, relevant, and material evidence offered by the defendant; (5) error of the court in giving certain instructions to the jury, to which instructions the defendant duly excepted; (6) error in refusing to give certain requested instructions, to which refusal the defendant duly excepted; (7) excessive damages; appearing to have been given under the influence of passion and prejudice. We cannot agree with counsel for defendant that the physical facts conclusively refute the theory of the plaintiff as to the manner the injuries were inflicted. The evidence shows that the space between the rail and the plank was about 3 inches, and counsel contend that "it was a physical impossibility for plaintiff to have gotten a No. 8 or No. 9 shoe, measuring 4 or 4 1/2 inches across the sole in the widest place, flat down into a 3-inch space." Whilst the theory of the plaintiff may seem improbable to the court, yet, in the absence of a more plausible explanation Of the manner the injury occurred, we do not feel that we would be justified in disturbing the finding of the jury upon that point. The plaintiff himself explained the details of the manner of his injury to the jury with great minuteness. Whilst the explanation seems somewhat involved, very likely it appeared quite clear to the jury, whose peculiar function it is to unravel and harmonize complicated combinations of facts. The plaintiff in a civil cause is not required to prove his cause beyond any reasonable doubt; if he makes it appear to be more probable that the injury came in whole or in part from the negligence alleged than from any other cause, that is...
To continue reading
Request your trial