St. Louis-S. F. Ry. Co. v. Routh

• Decision Date: 10 April 1928
• Docket Number: Case Number: 17679
• Citation: 271 P. 835,133 Okla. 168,1928 OK 251
• Parties: ST. LOUIS-S. F. RY. CO. v. ROUTH.
• Court: Oklahoma Supreme Court

1928 OK 251

271 P. 835

133 Okla. 168

ST. LOUIS-S. F. RY. CO. v. ROUTH.

Case Number: 17679

Supreme Court of Oklahoma

Decided: April 10, 1928

Syllabus

¶0 1. Appeal and Error--Judgment not Reversed for Mere Inaccuracy in Instructions Defining Issues Where Requested Instructions not Submitted.

Where the trial court, in stating the issues to the jury, quotes extensively from the pleadings, and substantially, though not accurately, states the issues, and opportunity is given counsel to inspect the instructions prepared by the court, and is given opportunity to prepare instructions, and counsel fails to submit any instruction defining the issues, a case will not be reversed for failure of the court to accurately define the issues involved.

2. Trial--Damages -- Instruction Defining Damages in Language of Statute not Error.

An instruction defining damages which follows the language of the statute is not error.

3. Railroads--Action for Damages for Injuries Sustained by Traveler in Crossing Accident--Instruction as to Negligent Construction of Tracks and Roadbed.

In an action for damage for injuries received by a traveler upon a public highway at a grade crossing on a railroad in collision with a train being operated on such railroad, where a part of negligence charged is a failure to use due care in constructing and maintaining the roadbed in the vicinity of the crossing, and the crossing itself, it is not error to instruct the jury that they may consider the fact that there was a curve, cut or fill and large embankments, for the purpose of determining the exact facts as to the exercise or nonexercise of due and proper care in the construction of the railway tracks and roadbed.

4. Appeal and Error--Harmless Error--Inaccurate or Incomplete Instructions.

Where an instruction given is inaccurate or incomplete, and it does not appear that the jury was misled thereby, and the inaccuracy or incompleteness is cured by other instructions, a case will not be reversed on account of such inaccurate or incomplete instruction.

5. Same--Incompetent Evidence in Damage Suit.

Where plaintiff, in an action for damages for personal injuries, is permitted, over the objection of defendant, to introduce evidence showing that plaintiff is married and has a family, a verdict for plaintiff will not be set aside on account thereof, where it clearly appears that the evidence of plaintiff's injuries is such that the verdict is not excessive.

Commissioners' Opinion, Division No. 2.

Error from District Court, Pawnee County; Edwin R. McNeill, Judge.

Action by Albert S. Routh against the St.-Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

E. T. Miller and Stuart, Cruce & Franklin, for plaintiff in error.

Johnston & Paddock and Prentiss E. Rowe, for defendant in error.

DIFFENDAFFER, C.

¶1 This action is an action brought by defendant in error, hereinafter referred to as plaintiff, against the plaintiff in error, hereinafter referred to as defendant, to recover damages resulting from a collision between a Ford automobile, driven by plaintiff, and the locomotive of a train operated by defendant at a highway crossing on defendant's road.

¶2 Plaintiff relies for his right of recovery upon negligence of defendant. The collision occurred at a point, where a public highway running north and south between the towns of Jennings and Hallett, crosses railroad of defendant, which also runs nearly in a north and south direction between said towns. The highway running north from Jennings follows the section line to a point about one-fourth of a mile south of the crossing where the accident occurred, where the right of way of defendant running slightly west of north approaches the section line on the east side thereof. The highway then leaves the section line, and runs parallel with the railroad to the crossing, at which place the center of the railroad right of way is about 200 feet west of the section line. There the highway curves to the right, and crosses the railroad, and returns to the section line, thus forming what is called a compound curve. For a part of the way north from where the highway leaves the section line, the railroad runs through a cut some five or six feet deep; the earth from which cut had been piled up between the railroad and the highway. Through this cut, in addition to the main line, it appears defendant had constructed a switch or side-track extending to a point about 150 feet south of the crossing and some distance north from the north end of the cut.

¶3 The allegations of negligence are: In the construction of the road, the earth taken from the cut was piled up between the railroad and the highway, so as to obstruct the view and hearing of one traveling along the highway approaching the crossing from the south; placing of switch and certain cars thereon between the railroad and the highway, thus further obstructing the view and hearing; so constructing the embankment and railroad as to empound the surface water south of the crossing so as to cause the water to collect along the railroad and run onto the highway at the crossing and in the railroad right of way for sometime after a rain, so that the highway and on the crossing approaching the railroad from the west side would remain wet and slippery for sometime after the highway out from the right of way had become dry; and failure to sound the whistle or ring the bell on the locomotive for the highway crossing; and that the train which struck plaintiff approached the crossing from the south at an excessive rate of speed.

¶4 Plaintiff claimed that while traveling north along the highway approaching said crossing, he was prevented from seeing or hearing the approach of the train by the embankment and cars standing upon the side-track until he had arrived at a point near the crossing, and that when he did discover the approaching train he applied the brakes on his automobile, but that on account of the slippery condition of the road at that point, he was unable to stop his automobile, so that it slipped or "skidded" onto or so near the railroad track that it was struck by the locomotive and in some way was caught by it and carried or dragged for a distance of about 300 feet, by which he received the injuries and by which his automobile was demolished, causing the damages for which he sues.

¶5 Defendant's answer was a general denial and plea of contributory negligence. The case was tried to a jury, resulting in a verdict for plaintiff, upon which judgment was rendered, and defendant brings this appeal. Defendant sets out 21 specifications of error, which he submits under five propositions. The first is that the verdict is not sustained by sufficient evidence. Defendant concedes that there is sufficient evidence, if believed, to establish the fact that insufficient signals were given, but claims that of itself is insufficient to sustain the verdict in view of plaintiff's evidence that he saw the train approaching when he was some 70 or 80 feet from the railroad track. Defendant argues that it would be a perversion of the law to allow a recovery where the driver of an automobile, approaching a crossing with which he is familiar on an approximately level road, discovers an oncoming train when he is as much ac 70 or 80 feet from the track, and then, owing to the speed of his car or the inefficiency of its equipment, or recklessness on his part, drives onto the track in front of the train.

¶6 We think it sufficient on this point to say that these were questions of fact involved in the plea of contributory negligence which were submitted to the jury under proper instructions. The jury having passed upon that question, we are precluded from saying that plaintiff was guilty of contributory negligence.

¶7 Defendant also fails to take into consideration the allegations and evidence with reference to the condition of the roadway at that point and its cause. The next proposition is that the court erred in the instructions to the jury, and that proposition is subdivided into seven questions of alleged error. The first is that the court failed to properly define the issue to the jury, and instead thereof quoted plaintiff's voluminous petition, "which had been drawn by plaintiff's attorney in the verbose manner characteristic of him."

¶8 Defendant cites Lambard-Hart Loan Co. v. Smiley 115 Okla. 202, 242 P. 212, and Schaff, Receiver, v, Richardson, 120 Okla. 70, 254 P. 496, 254 P. 496, as supporting its contention. In the Lambard-Hart Loan Co. v. Smiley case, it is said the court refused to define the issues, but instead submitted the pleadings in their entirety to the jury. In Schaaf, Receiver, v. Richardson, it appears that the court there refused over the objection of defendant to define the issues, but instead copied in full the pleadings, and left the jury to determine what issues were submitted.

¶9 An examination of the record in the instant case discloses that the court did not quote the pleadings in their entirety. The court did quote quite extensively from the pleadings, and included many, matters which might well have been left out, but we do not find that he included anything which did not have some evidence to support it. We think, however, that defendant did not bring itself within the rule in such cases, so as to require a reversal on account of failure of the court to properly define the issues to the jury.

¶10 In Schmucker v. Clifton, 62 Okla. 249, 162 P. 1094, a case wherein the entire pleadings were submitted to the jury in lieu of a statement of the issues, it was said:

"While we think it would have been better practice to have more distinctly stated the issues involved in the trial than was done by copying into the instruction given the pleadings in the case, we think that by reason of the opportunity given by the trial judge, who gave ample time and invited the attorneys for the parties to prepare instructions to be submitted to him,

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