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

• Decision Date: 11 June 1918
• Docket Number: 6583.
• Citation: 174 P. 1036,68 Okla. 301,1918 OK 367
• Parties: ST. LOUIS & S. F. R. CO. et al. v. BOUSH.
• Court: Oklahoma Supreme Court

174 P. 1036

68 Okla. 301, 1918 OK 367

ST. LOUIS & S. F. R. CO. et al. v. BOUSH.

No. 6583.

Supreme Court of Oklahoma

June 11, 1918

Rehearing Denied Aug. 13, 1918.

Syllabus by the Court.

In an action for damages for personal injuries against a railway company and the engineer and fireman operating one of its locomotives, caused by a horse on rural premises adjacent to the tracks taking fright at the sounding of the whistle alleged in the petition to have been sounded by the engineer and fireman knowingly, willfully, wantonly, and maliciously with the purpose and intent to frighten the animal, which is denied in the answers, held, that the evidence stated in the opinion does not reasonably tend to support a verdict for plaintiff on that issue.

Where the petition, in an action against a railway company and the engineer and fireman operating one of its locomotives alleges that defendants, with the purpose and intent to frighten a horse drawing a vehicle on premises adjacent to the tracks, willfully, wantonly, and maliciously commenced to sound the whistle, and, seeing the effect of the noise, willfully, knowingly, negligently, wantonly, and intentionally, and only for the purpose of gratifying a base curiosity and malignant spirit, continued blowing the whistle, in consequence of which injuries were inflicted on the driver, recovery cannot be had when the evidence tends to show no more than mere negligence on part of defendants.

Under article 23, § 6 (Williams' § 355) of the Constitution, in all cases whatsoever where contributory negligence is a proper defense, the defendant has the right to have the question left to the jury as one of fact. The court has not the power to refuse to submit the defense under proper instructions because of the opinion that the facts proven, if true, do not, as a matter of law, constitute contributory negligence, or are insufficient to support a verdict for defendant on that issue.

Additional Syllabus by Editorial Staff.

On appeal assigning error in refusing to direct a verdict, the question, admitting the truth of all plaintiff's evidence, together with all reasonable inferences and conclusions, and eliminating from consideration all conflicting evidence and opposing inferences, is whether there is any competent evidence reasonably tending to support the verdict against such defendant.

Error from District Court, Comanche County; J. T. Johnson, Judge.

Action by Nathaniel Boush against the St. Louis & San Francisco Railroad Company and others, continued, after plaintiff's death, in the name of Anna H. Boush, as administratrix. Judgment for plaintiff, motion for new trial overruled, and defendants bring error. Reversed, and cause remanded for a new trial.

W. F. Evans, of St. Louis, Mo., R. A. Kleinschmidt, of Oklahoma City, and E. H. Foster, of Muskogee, for plaintiffs in error.

Chas. Mitschrich, of Lawton, for defendant in error.

MILEY J.

This action was commenced in the court below by Nathaniel Boush against plaintiffs in error to recover damages for personal injuries sustained by him. While the action was pending, the plaintiff, Nathaniel Boush, died, and the cause was revived and continued in the name of the defendant in error, Anna H. Boush, as administratrix of his estate. There was trial to a jury, and upon their verdict judgment rendered in favor of defendant in error and jointly against the plaintiffs in error. Motion for new trial having been overruled, plaintiffs in error, defendants below, bring the cause here for review. The parties will hereinafter be referred to according to their designation in the trial court.

It was charged in the amended petition, upon which the cause was tried, that the said Nathaniel Boush was riding in a two-wheel cart drawn by a horse, and that at a point near the tracks of the defendant railway company, the horse took fright at the sounding of the whistle of a locomotive engine being operated by the defendant Nichols as engineer and the defendant Weber as fireman, and drawing a freight train of the defendant railway company; and that by reason thereof the horse ran away and the said Nathaniel Boush was thrown from the cart and thereby sustained the injuries complained of. The allegations of the amended petition pertaining to the liability of the defendants are as follows:

"The said agents and employés of said defendant railroad company, to wit, said defendants D. C. Nichols and John Weber, engineer and fireman, respectively, in charge of said locomotive engine, with the purpose and intent to frighten the said Nathaniel Boush's said mare, willfully, wantonly, and maliciously commenced, and continued, until said Nathaniel Boush was thrown from said cart and injured as hereinafter stated, to blow the whistle of said engine, in a manner more calculated to frighten and render unmanageable, horses, and other domesticated animals; that the manner of blowing said whistle at the time and place above mentioned was not called for nor demanded by any event or circumstances within the range of said defendants' legitimate business; that when the said agents and employés of said defendant railway company began to near a point directly north of said horse, they began to give, and continued to give, keen and frightful sounds in quick and rapid succession, by means of the whistle, the immediate effect of which was to frighten the said mare which the said Nathaniel Boush was then and there driving, causing said mare to leap, jump, and kick in the most violent manner, and to get beyond the control of the said Nathaniel Boush, and to run away with the said Nathaniel Boush without any fault on his part and despite his utmost efforts to keep said mare under control; that by reason of such leaping, jumping, and kicking and getting beyond his control and running away of said mare with the said Nathaniel Boush, he, Nathaniel Boush, was placed in great danger of being killed, and was then and there thrown from said cart, and his leg broken in five places, and he was greatly bruised in his body and was internally injured, and his nervous system was greatly shocked, and he suffered serious and permanent bodily injury and great physical pain and mental anguish.

Plaintiff further alleges that the said defendants D. C. Nichols and John Weber, who were then and there the employés of the said defendant railroad company, saw the effect of said frightful noise on said mare which Nathaniel Boush was driving, when the whistle commenced and while the same was going on, and might have ceased making the same, but for no legitimate purpose did, willfully, knowingly, negligently, wantonly, and intentionally, and only for the purpose of gratifying a base curiosity and malignant spirit, commenced and continued blowing said whistle in the most frightful manner of which they were capable, thereby causing the injuries to said Nathaniel Boush, as aforesaid, and by causing said Nathaniel Boush to be thrown from said cart and injured as hereinbefore set forth."

The defendants separately answered by general denials and pleas of contributory negligence.

The evidence disclosed that the injuries were sustained on certain premises under the control of D. B. McIntire. The tract of land was one mile long from east to west, and one-fourth mile wide from north to south. The tracks of the defendant railway company traversed the premises from east to west practically through the middle thereof. North of the tracks was the cultivated land and the farm houses. The portion of the premises south of the track was a pasture. The railroad right of way was fenced, and at a point about 100 yards from the east line of the premises was a private crossing on the tracks and gates in the fence so as to permit passage from one portion of the farm to the other. The barn was north of the tracks and slightly west of this private crossing. Near the west line of the farm, and on defendant railroad company's right of way, it had a flag station. There was a public road along the west line, and also one along the east line of the farm. At a point 80 rods east of each of these public roads was a whistling post, at which point it was the duty of the engine men operating west-bound trains to commence giving the warning required by statute. East of the farm and about midway between the public road and the crossing whistle board was another whistling board, at which point it was usual and customary to sound the whistle to indicate that the train was approaching the flag station heretofore referred to.

The said Nathaniel Boush, accompanied by his daughter, Anna Boush, and said McIntire, was driving his cart east along a private road in the pasture and off the right of way. According to the testimony of McIntire, a witness for plaintiff, while the horse was traveling at a slow pace and the cart was about 50 yards from the railroad track and the engine was at a point south of the barn and a little west of the private crossing the whistle was sounded, the horse commenced to run, and after running about 100 yards, Mr. Boush was thrown out. This witness said that the whistle "had a short, jerky sound," which continued from the time the horse commenced to run until Mr. Boush was thrown out; that he heard three or more blasts, but how many more he would not say, as his attention was directed toward stopping the runaway. He further testified that when the engine was just west of the private crossing, he saw one man in the cab window and another standing in the gangway between the engine and tender on the south or left-hand side of the engine; that these two men were laughing at them; and that he did not observe them make any other sign or signal. He also testified that there was no object on the track ahead of the engine.

The only...