St. Louis & S. F. R. Co. v. Loftis
Decision Date | 11 January 1910 |
Docket Number | Case Number: 293 |
Citation | 106 P. 824,25 Okla. 496,1910 OK 31 |
Parties | ST. LOUIS & S. F. R. CO. v. LOFTIS. |
Court | Oklahoma Supreme Court |
¶0 1. TRIAL--Demurrer to Evidence--Refusal -- Supplying Defects. Where a demurrer to plaintiff's evidence is overruled, although, on account of some omission in the testimony, it should have been sustained, if thereupon the defendant proceeds to offer testimony, and in so doing supplies the omission, the error in the ruling on the demurrer is corrected; and if, upon all the testimony in the case, the judgment was properly rendered, it will not be disturbed on appeal.
2. NEGLIGENCE--Question for Court and Jury. In cases involving negligence, when a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the question is for the jury, and it is only when the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is considered one of law for the court.
Error from District Court, Marshall County; D. A. Richardson, Judge.
Action by H. L. Loftis against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Flynn & Ames and W. C. Mitchell, for plaintiff in error.--Citing: Chicago, R. I. & P. Ry. Co. v. Woodward (Ind. Ter.) 35 S.W. 240; St. Louis & S. F. R. Co. v. Zachary, 53 S.W. 327; Chicago, R. I. & P. Ry. Co. v. Huggins, 69 S.W. 846.
Summers Hardy and William M. Franklin, for defendant in error.--Citing: Cain v. Gold Mt. Mining Co. (Mont.) 71 P. 1004; Elmendorf v. Golden (Wash.) 80 P. 264; Power v. Stocking, 68 P. 859; Columbia & P. S. R. Co. v. Hawthorne, 144 U.S. 202; Gulf, C. & S. F. Ry. Co. v. Washington, 49 F. 347; Gulf, C. & S. F. Ry. Co. v. Johnson, 54 F. 474; Gulf, C. & S. F. Ry. Co. v. Ellis, 54 F. 481; M., K. & T. Ry. Co. v. Shepherd, 20 Okla. 626.
¶1 This action was commenced by H. L. Loftis, hereinafter called plaintiff, against the St. Louis & San Francisco Railroad Company, hereinafter called the Railroad Company, in September, 1907, in the United States Court for the Southern District of the Indian Territory at Tishomingo, where it was pending at the time of the admission of the state. After the admission of the state, it was transferred to the district court of Marshall county, where a trial resulted in a judgment for plaintiff. Plaintiff seeks to recover damages for two mules which he alleges were killed by the Railroad Company while operating its engine and cars between the towns of Madill and Randolph in this state. He charges that the company carelessly and negligently operated one of its trains so that the same ran against and over two of his mules, resulting in the immediate killing of one, and in so injuring the other that it had to be killed.
¶2 When plaintiff rested his case, the Railroad Company demurred to his evidence, and the court overruled the demurrer. The Railroad Company now urges said ruling of the court as its first assignment of error. After the court overruled its demurrer, the Railroad Company introduced its evidence, and plaintiff submits, as a counter proposition to the first assignment of error, that the Railroad Company, by the introduction of evidence in support of its defense, has waived any error the court may have committed in overruling its demurrer to plaintiff's evidence. The exact question presented by plaintiff's counter proposition, so far as we are informed, has never been passed upon in this jurisdiction, and upon it, as upon almost every other question of practice that is presented to appellate courts, there is a division among the authorities. The rule which appears to us to be supported by the best reason, and is most conducive to the expedition of litigation and the administration of justice, is that, where a demurrer to plaintiff's evidence is overruled, when on account of some omission in the testimony, it should have been sustained, and thereupon defendant proceeds to offer testimony, and in so doing supplies the omission, the error in the ruling on the demurrer is corrected, and if, upon all the testimony in the case, the judgment, was properly rendered, it will not be disturbed on appeal. Atchison & N. Ry. Co. v. Reecher, 24 Kan. 228; C., R. I. & P. Ry. Co. v. Doyle, 18 Kan. 58; Simpson v. Kimberlin, 12 Kan. 579; Weber v. Kansas City Cable Ry. Co., 100 Mo. 194, 12 S.W. 804, 13 S.W. 587, 7 L. R. A. 819, 18 Am. St. Rep. 541; Elmendorf v. Golden, 37 Wash. 664, 80 P. 264; Cain v. Gold Mountain Min. Co., 27 Mont. 529, 71 P. 1004. Under this rule this cause should not be reversed, although the court, at the time of overruling the demurrer, committed error, if the evidence subsequently introduced by defendant supplied the defect in plaintiff's evidence. It will therefore be unnecessary for us to review separately plaintiff's evidence; and since, by the only other assignment urged, which is, that the court erred in overruling the Railroad Company's motion for a peremptory instruction, we are required to review the entire evidence, we may consider both assignments together.
¶3 The mules were injured in the night by one of the company's north-bound freight trains. The night was clear, and the moon shining bright. The mules entered upon the company's right of way near a road crossing. The track north of the crossing for a distance of from 200 to 300 yards is straight. At that point is a slight curve. North of this curve the track is practically straight for about a quarter of a mile, where there is another curve. North of the second curve, for a distance of from a quarter to a half of a mile, to the point where the mules were found, the track is straight. The mules, after being struck, were dragged upon the track for a distance of from 100 to 300 yards. They ran upon the track ahead of the engine a distance of about 300 yards before being struck. A witness for plaintiff, who was traveling along the public highway lying east and parallel to the company's track, testifies that his attention was first attracted to the train by its whistling when he was at a point about a quarter of a mile from the track and...
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