St. Louis & S. F. R. Co. v. Davis
| Decision Date | 06 May 1913 |
| Docket Number | Case Number: 2689 |
| Citation | 132 P. 337,1913 OK 295,37 Okla. 340 |
| Court | Oklahoma Supreme Court |
| Parties | ST. LOUIS & S. F. R. CO. v. DAVIS. |
¶0 1. APPEAL AND ERROR--Objection Below--Necessity--Examination of Witnesses. Though a question propounded to a witness be objectionable, opposing counsel cannot complain of the prejudicial effect thereof, where no objection was made until after the answer was given, and where no request was made to exclude the testimony from the consideration of the jury.
2. TRIAL--Instructions--Amended Pleading--Cure of Error. Where an instruction is authorized by evidence which is introduced without objection, though not within the allegations of the original petition, and where an amended petition, including the omitted allegations with reference to which evidence is so received, is filed at the close of the trial and before final submission to the jury, no error is committed on account of the giving of such instruction.
3. APPEAL AND ERROR--Record--Conclusive Effect. Counsel for plaintiff in error who prepare and cause to be served a case-made for appeal and who certify that it is a true, correct, and complete transcript of the record, including pleadings filed, will not be permitted on appeal to urge that an amended petition purporting to have been filed was filed without their knowledge and without leave of court.
4. CARRIERS--Discharge of Passengers--Duty of Carrier. Section 1379, Comp. Laws 1909, makes it the duty of a railroad company to discharge passengers at the regularly appointed place, and provides that for a refusal or neglect so to do it shall be liable to the party aggrieved for all damages sustained.
5. SAME. It is the further duty of a railroad company to stop its trains at appointed places a sufficient length of time to afford passengers traveling thereon an opportunity, by the use of ordinary care and diligence, to alight therefrom while the train remains stationary.
6. SAME--Carrying Passengers Beyond Destination--Liability of Carrier. A railroad company is liable for the natural and proximate damages resulting from negligently or wrongfully carrying a passenger beyond the point of destination called for by her ticket.
7. SAME--Negligence--Carrying Passengers Beyond Destination--Elements of Damage. Illness and impaired health contracted from exposure and exertion, sustained by a female passenger compelled to walk back to the station, past which she was wrongfully carried, where the proximate consequence of the wrongful act, are proper elements of damage.
8. NEGLIGENCE--Promixate Cause--Question for Jury. The proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a question of fact, in view of the circumstances of fact attending it.
9. APPEAL AND ERROR--Damage--Excessive Recovery. Appellate courts should sparingly exercise the power of granting new trials on the ground of excessive damages, and only when it appears that the verdict is so excessive as per se to indicate passion or prejudice.
10. CARRIERS--Personal Injuries--Excessive Recovery. Under the rule announced in the preceding paragraph, under the testimony, a verdict of $ 500 held not excessive.
W. F. Evans, R. A. Kleinschmidt, and J. H. Grant, for plaintiff in error.
Champion & Champion (A. C. Cruce, of counsel), for defendant in error.
¶1 There being evidence reasonably tending to support the allegations of the amended petition, both as to the defendant company's negligence and the consequent injury sustained, it was not error for the court to overrule the defendant's demurrer to the plaintiff's evidence. For the same reason it was not error for the court to refuse to peremptorily instruct the jury to return a verdict for the defendant company. It is urged that the court erred in permitting the plaintiff to answer certain questions propounded to her by counsel. The questions, answers thereto, objections, and rulings of the court thereon, are as follows:
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¶2 It will be noted that no objection was made to the first three questions; the fourth question was not answered; the last question was answered before any objection to the question was made; and it does not appear that sufficient opportunity was not given counsel to object before the question was answered by the witness. It is a very general rule in the trial of cases that where evidence is introduced to which no objection is made, and where no motion is made to strike it out, acquiescence in its introduction will be presumed. Chouteau v. Jupiter Iron Works, 94 Mo. 388, 7 S.W. 467; Thomason v. Odum, 31 Ala. 108, 68 Am. Dec. 159; Kehoe v. Hanley, 95 Ga. 321, 22 S.E. 539; Smith v. Dawley, 92 Iowa 312, 60 N.W. 625; Corcoran v. Detroit, 95 Mich. 84, 54 N.W. 692; Totten v. Burhans, 103 Mich. 6, 61 N.W. 58; Fath v. Thompson, 58 N.J.L. 180, 33 A. 391; Collins v. Cook, 40 Tex. 238. And unless a motion to strike out the answer is made, an objection after the admission is not available on appeal. Link v. Sheldon et al., 136 N.Y. 1, 32 N.E. 696; Hangen v. Hachemeister, 114 N.Y. 566, 21 N.E. 1046, 5 L.R.A. 137, 11 Am. St. Rep. 691; Wilson v. Boasberg, 1 Misc. 436, 21 N.Y.S. 915; Kelly v. Cohoes Knitting Co., 8 A.D. 156, 40 N.Y.S. 477; Sternwald v. Siegel, 7 Misc. 70, 27 N.Y.S. 375; Smith v. Chicago, M. & St. P. Ry. Co., 26 S.D. 555, 128 N.W. 815; Hollenbeck v. Missouri Pacific Ry. Co., 141 Mo. 97, 38 S.W. 723; Totten v. Burhans, 103 Mich. 6, 61 N.W. 58; Thompson on Trials, sec. 716. No objection having been made to the question until after it was answered by the witness, and no motion to strike out the answer or to exclude it from the consideration of the jury having been made by counsel, no error on account thereof is presented for our consideration. The objection to instruction No. 5 cannot be sustained. Notwithstanding the allegations of plaintiff's original petition that the train on which the plaintiff was a passenger failed to stop at Durwood, yet it is obvious the case was tried upon the theory that it did not stop at Durwood a sufficient length of time to allow plaintiff to alight; in fact, no objection to the evidence on this point was offered by defendant. At the conclusion of the testimony the plaintiff filed an amended petition, in which it was specially charged that the train did not stop at Durwood station a sufficient length of time to allow plaintiff to disembark therefrom. The case having been tried upon that issue, without objection to the evidence offered in support thereof, an objection to an instruction authorized by the evidence is not well taken. Nor can weight be given to the objection urged in the brief of counsel for plaintiff in error that they had no knowledge an amended petition was filed. This amended petition is contained in the case-made served by counsel for plaintiff in error upon counsel for defendant in error, and contains the certificate of both counsel as a true, correct, and complete transcript of all the pleadings, motions, findings, evidence, verdict, judgment, and all proceedings in said case. Had an attempt been made to bring the amended petition into the case-made by amendment suggested by counsel for defendant in error, the question of leave to file said amended petition, having first been obtained, would have been one for the court below to have determined; but, being contained in the transcript served by plaintiff in error's counsel, no advantage can here be taken that it does not speak the truth. It is next urged that the court erred in refusing to submit to the jury defendant's requested instructions numbered 4 and 5. In the instructions given the court charged that if the jury found defendant was negligent in not affording plaintiff a sufficient opportunity to alight from the train at Durwood station and she was carried a distance beyond said station and compelled to walk back to the station, and thereby suffered the injuries complained of, as the result of said negligence on the part of the defendant company, and if such negligence was the direct and proximate cause of her injuries, if any, then plaintiff would be entitled to recover. It is provided by statute, in case of neglect or refusal of a railroad company or its agents to discharge passengers at the regularly appointed place, such railroad company shall pay to the party aggrieved all damages which shall be sustained thereby with cost of action. Comp. Laws 1909, sec 1379. Thus it is made a statutory duty of the carrier, independent of the transportation contract, to afford a reasonable opportunity for the passenger to alight at his point of destination, and, when there is a violation of the statute, the offending carrier shall respond in damages. Choctaw, O. & G. R. Co. v. Burgess, 21 Okla. 653, 97 P. 271; St. Louis & S. F. R. Co. v. Cox, 26 Okla. 331, 109 P. 511; Ft. Smith & Western Ry. Co. v. Ford, 34 Okla. 575, 126 P. 745, 41 L.R.A. (N.S.) 745; Barringer v. St. Louis, I. M. & S. Ry. Co., 73 Ark. 548. 85 S.W. 94; Southern Ry. Co. v. Hobbs, 118 Ga. 227; 45 S.E. 23, 63 L.R.A. 68; Midland Valley R. Co. v. Page (C. C.) 182 F. 125; Elliott on Railroads, sec. 1628. The action, therefore, is not based alone...
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