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

Decision Date23 December 1913
Docket NumberCase Number: 2696
Citation41 Okla. 177,137 P. 1156,1913 OK 751
PartiesST. LOUIS & S. F. R. CO. v. LONG.
CourtOklahoma Supreme Court
Syllabus

¶0 1. PLEADING--Amendment--Discretion--Death of Railroad Employee. Where allowance of filing of amended petition immediately before trial and of insertion of additional allegation amending feature in description of accident resulting in death for which damages are claimed to conform to facts proved do not change substantially plaintiff's claim, and it does not appear any right of defendant was thereby prejudiced, it was in the sound discretion of the court to permit same.

2. CONTINUANCE--Grounds--Surprise--Discretion. Where attorney for plaintiff, in questioning jurors as to causes for challenge, makes statement erroneously construed as disclosing ground for removal of case to federal court in conflict with allegation in petition, whereupon attorney for defendant claims surprise, asks leave to withdraw announcement of ready for trial and answer on file and for continuance of case for purpose of time in which to file petition and bond for such removal, whereupon attorney for plaintiff disclaims intent to state and expressly denies existence of such ground, and the undisputed evidence showed that no such ground existed, there was no error in denying such leave and continuance.

3. TRIAL--Reopening Case--Discretion. Where, after both parties have rested, plaintiff is permitted, over oral objection and statement by defendant that she had already announced that her case was closed (which record does not show), that defendant's witnesses have been excused and have left town (which is denied by plaintiff and not supported by affidavit or other proof), and that amendment allowed did not conform to the proof already introduced (which is not entirely correct), to introduce evidence relating to whether space in which her decedent's foot was caught should have been blocked by defendant, and where no prejudice of right or abuse of discretion in doing so appears, there is not reversible error.

4. APPEAL AND ERROR--Harmless Error--Evidence--Diagram. The unnecessary permitting of diagram on floor in view of jury and its use, by reference thereto, in questions to and answers by witnesses, is, at least, not to be commended; but, where only few questions and answers relate thereto, and the court then expresses disapproval, to which deference is shown by desisting from such references, and the party objecting thereafter causes witness to make and puts into record a diagram like the one on the floor, and also later puts into record a more elaborate diagram including the same features as the one on the floor, the error will not require reversal of the case.

5. NEGLIGENCE--Contributory Negligence--Question for Jury. Const. art. 23, sec. 6 (section 355, Williams' Ann. Const.), of Oklahoma, is not merely declaratory of the common law, but requires that the defense of contributory negligence and of assumption of risk, as questions of fact, in all cases whatsoever, shall, at all times, be left to the jury; and the finding of the jury upon these defenses is conclusive upon the courts.

6. TRIAL--Contributory Negligence--Refusal of Instructions. It is not error to refuse requested instructions going beyond bare definition, as to the defenses of contributory negligence or assumption of risk, though they correctly state the law in other respects, if the jury are not instructed and the party presenting same does not request instruction to effect that "the defense of contributory negligence or of assumption of risk, in all cases whatsoever, shall be a question of fact, and shall, at all times, be left to the jury."

7. SAME--Refusal of Instructions Covered--Negligence--"Ordinary Care"--"Ordinary Negligence"--"Contributory Negligence." Where the court defines "ordinary care" as "such care as a person of ordinary prudence would exercise about his own affairs of ordinary importance" and the want of same as "ordinary negligence," and further instructs that "contributory negligence, as used in these instructions, is such an act or omission on the part of plaintiff's decedent which amounts to a want of ordinary care on his part and which, concurring or co-operating with the negligent act of the defendant, is the proximate cause or occasion of the act complained of," it is not reversible error for the court to refuse to give a differently worded instruction substantially to the same effect, nor another that merely emphasizes and illustrates the rule given the jury.

8. SAME--Injury to Railroad Employee--Refusal of Instruction--Evidence. Where uncontradicted evidence shows safety would result from blocking dangerous open space between guard rail and main line rail in yard of railroad company used in switching cars at night, and that, besides defendant, which did not, two of three other roads for which the only witness on this point had worked used the blocking system, which it does not appear introduces any new danger, it was not error to refuse to instruct "that the mere fact that defendant did not block the frogs, guard rails, and angles between the side track and the rail of its main track will not warrant you in finding that the defendant was negligent, and such omission on the part of the defendant does not amount to negligence as a matter of law."

9. DEATH--Damages Recoverable. Where plaintiff wife was nearly 24 years old, the child for whom she also sued was two years old, and her decedent husband was 30 years old, sober and healthy, and where decedent had earned as high as $ 160 per month while working for another railroad company, and, within the 20 or 21 months during which he worked for defendant, had commenced work at $ 50 and thereafter got $ 120 per month until about fifteen days before his death, but during these days worked about an hour less time each day and got a little less salary, and where he was affectionate to his family and usually turned his earnings over to plaintiff, who paid bills and deposited balance in bank, and he did not spend money foolishly, although only about $ 200 was in bank at time of his death and plaintiff's account of his use of his earnings is not entirely satisfactory, it cannot be said a verdict for $ 15,000 damages by reason of his death from negligence of defendant is excessive and apparently given because of passion or prejudice.

10. MASTER AND SERVANT--"Assumption of Risk." "Assumption of risk" is a term of the contract of employment, express or implied from the circumstances of the employment, by which the servant agrees that dangers of injury obviously incident to the discharge of the servant's duty shall be at the servant's risk.

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

Wolfe, Wood & Haven and Hardy & Franklin, for defendant in error.

THACKER, C.

¶1 In this opinion plaintiff in error will be designated as defendant and defendant in error as plaintiff, in accord with their respective titles in the trial court. On March 15, 1909, S. H. Long, foreman of defendant's switch engine crew, was killed in uncoupling its moving cars in its yards at Francis, Okla.; and on June 10, 1909, plaintiff, for herself and minor child, Hazel Long, these being wife and child respectively of said S. H. Long, commenced this action against defendant for $ 35,000 as alleged damages suffered by reason of alleged negligence of defendant, as master, causing the death of the husband and father, as its servant. The defendant assigns error in that the court permitted plaintiff (first specification) "to file an amended petition after the case had been called for trial" (seventh specification) "to reopen her case after she had announced that she rested," and (eighth specification) "to amend her petition after both the plaintiff in error and defendant in error had rested and after the court had excused the witnesses." On the same day, but apparently before the case was called for trial, plaintiff was permitted to file, over objection in most general terms, an amended petition alleging negligence in the failure and refusal of the engineer in charge of the switch engine to slow up and stop in obedience to a signal given by plaintiff's decedent before he went between the cars, in anticipation that such signal would be obeyed, to make the uncoupling, and in thereafter starting "said cars backward at a very dangerous rate of speed," which allegations in respect to signal finds no support in the evidence, unless such an inference could have been drawn by the jury from the proven facts admissible under the original as well as the amended petition, which, without necessity for deciding, we may assume for the purpose of this opinion could not have been done; and, although the two other grounds of negligence charged in the original petition were repeated in somewhat changed form in this amended petition, it does not appear that any other material change in the original petition was made by this amendment. Plaintiff's original petition, as well as this amended petition, alleges negligence against the defendant in that it had permitted the frogs and angles of its rails to remain open without blocks, and had permitted the defective condition of the coupling equipment in the car her decedent was attempting to uncouple at the time of the accident; and that from these causes "his foot caught in a frog in the track, or in an angle formed by the side track rail approaching the rail of the main line, and was thrown down and run over by said cars and cruelly killed." After this amended petition was filed, defendant refiled its amended answer, plaintiff filed her reply, and the case went to trial with both parties apparently ready. After a demurrer to the evidence introduced by plaintiff had been overruled, she asked and was granted permission to, withdraw her announcement of rest, defendant thereupon excepted, plaintiff thereupon stated a desire to prove that other...

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