St. Louis & S.F. Ry. Co. v. Clampitt
| Decision Date | 30 November 1915 |
| Docket Number | 5148. |
| Citation | 154 P. 40,55 Okla. 686,1915 OK 994 |
| Parties | ST. LOUIS & S. F. RY. CO. v. CLAMPITT. [a1] |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 11, 1916.
Syllabus by the Court.
The practice of the trial judge taking charge of a witness, and conducting a long cross-examination, is not to be commended. Still it is the duty of the judge to see that the facts are brought out; and, unless it is apparent that there has been an abuse of discretion, and that the trial judge has shown his belief in the untruthfulness of the witness, or has given an intimation of his opinion on the facts, it is not prejudicial error.
The mere happening of an accident to an employé does not raise a presumption of negligence, but where an accident happens to an employé resulting in his death, the manner of the occurrence and its surroundings may be shown, from which the jury may infer the manner and cause of the accident, if the inference is a reasonable one.
Where the evidence tends to show that a brakeman was killed by falling under a moving train, from which he had alighted in the performance of a duty, and there was evidence that the platform on which he alighted was defective in a manner that might have caused him to fall under the train, the question was properly left to the jury, although there was no direct evidence that the condition of the platform caused him to fall.
It is only when the evidence, with all the inferences that the jury can reasonably draw therefrom, is insufficient to support a verdict that the court is authorized to direct a verdict for the defendant.
Evidence that it was the habitual practice of brakemen at stations to alight from moving trains in the performance of their duties is admissible, especially when it is shown that it is impractical to perform such duties without getting on and alighting from moving trains.
Evidence of the condition of a platform three weeks after the accident is admissible when it is shown that no change has been made therein, except the usual wear occasioned by the elements.
The charge in this case examined, and found free from error.
Where special instructions are requested, which are fairly covered by the charge, it is not error to refuse to give them.
Under the provisions of article 7, § 21, of the Constitution defendant is not entitled to have special interrogatories submitted to the jury, in addition to the general verdict.
Under the provisions of Employers' Liability Act April 22 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665), the jury may return a general verdict in favor of the personal representative, and need not apportion the damages among the beneficiaries.
Commissioners' Opinion, Division No. 2. Error to District Court, Garfield County; James W. Steen, Judge.
Action by Amanda V. Clampitt, administratrix and personal representative of the estate of B. F. Clampitt, deceased against the St. Louis & San Francisco Railway Company, a corporation. Judgment for plaintiff, and defendant brings error. Affirmed.
Under Const. art. 7, § 21 (Okl.St.Ann.), a defendant is not entitled to have special interrogatories submitted to the jury in addition to the general verdict.
This was an action brought by the defendant in error as administratrix of the estate of B. F. Clampitt, deceased, for damages resulting in the death of her intestate, by the negligence of the defendant, and the action is brought under federal Employers' Liability Act April 22, 1908, c. 149 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665). The petition is in the usual form, alleging that the plaintiff in error is a railroad corporation, engaged in interstate commerce, and that the intestate was a brakeman on a certain train which was carrying interstate shipments. The negligence on which the case was tried was that a platform at the station of Thomas, Okl., on the line of the road of the plaintiff in error, was defective, and when the plaintiff's intestate attempted to alight from the train at that point, owing to the defective condition of the platform, he fell under the cars of the train, and received injuries which resulted in his death. The answer was a general denial, and alleges contributory negligence, assumption of risk, and also pleads certain rules of the plaintiff in error, regulating the conduct of its employés.
The evidence on the part of the plaintiff disclosed that the plaintiff's intestate was a brakeman on the freight train, engaged in interstate commerce, and that on arriving at the station of Thomas, he was riding on the engine; that arriving at Thomas, preparatory to taking water, he alighted from the engine at the station of Thomas for the purpose of examining the records in the bill box, to see if there were any cars at Thomas which the train on which he was employed was required to take up and carry forward in transit so as to get to their destination. The evidence further showed that the platform at this place was a timber platform, which had been constructed in 1902, and was about 14 inches above the rails at this point; that the planks at this place where the plaintiff's intestate alighted were some of them rotted, and had holes in them, and that there were some nails at this point protruding above the surface of the platform, one of them as much as an inch and a half. There was also evidence that the planks in the platform would spring when a person trod upon them, as much as an inch and a half, which was caused probably by the stringers or sleepers under the platform being rotten. There was also evidence that the life of a platform of this character was from 10 to 12 years, and that this platform had been erected in 1902, and the accident occurred in January, 1912. There was no direct evidence as to how the plaintiff's intestate fell under the train, the evidence on the part of the plaintiff tending to establish that it was on account of the defective condition of the platform, by striking his foot against a protruding nail, or by reason of the spring in the platform, or by reason of some of the planks in the platform being higher than others; that is, some thicker planks than those used in the platform had been placed there in repairing it, which caused its surface to be elevated above the general level of the platform. The evidence of the defendant tends to contradict this evidence, and to show that the platform was in good condition; that there were no protruding nails, and that the cause of the fall of the plaintiff's intestate was that he lost his balance in alighting from the engine, and reeled along the platform for some 30 feet until he fell between the cars. The plaintiff in error also introduced its rules, which, as far as it pleads them, and therefore as we assume, are germane to the questions, are as follows:
"General Notice.
To enter or remain in the service is an assurance of willingness to obey the rules.
Obedience to the rules is essential to the safety of passengers and employés, and to the protection of property.
Employés in accepting employment assume its risks.
Rule No. 630. All persons entering into or remaining in the service of this company are warned that the business is hazardous, and that in accepting or retaining employment they must assume the ordinary risks attending it. Their attention is especially called to the fact that they are employed and retained with the express understanding and agreement that, in consideration of the compensation paid them, they will assume all risks of injury, which may result to them by reason of any act, negligent or otherwise, done by any person employed by the company in the operation or maintenance of its railway, regardless of what department or line of service such person may be engaged in.
Rule No. 631. Each employé is required to be responsible for his own safety, as well as to exercise the utmost caution to avoid injury to his fellows. Employés of every rank and grade are wanted to see for themselves before using them that the rolling stock, machinery or tools which they are required to use are in safe condition or that they are so put before using.
Rule No. 632. The company does not require or expect its employés to incur any risk from which, by the exercise of their judgment and personal care, they can protect themselves, but enjoins upon them and demands that they shall take time and use the means necessary to, in all cases, do their duty in safety.
Rule No. 636. It is alike dangerous to assume that signals given to the engineman or fireman have been seen, and if seen will be obeyed--when obedience to those signals on the part of the engineman or fireman is essential to the safety of an employé in the performance of his duty. He must know that the signal has been seen, understood and obeyed, before placing himself in a dangerous position--otherwise, without such knowledge he assumes all risks of danger arising from any misunderstanding or disregard of signals.
Rule No. 637. Employés are forbidden to stand on track and jump on engine or cars as they approach them, and are warned not to jump on or off trains or engines moving at a high rate of speed or to go between cars in motion to uncouple them, or to follow other dangerous practices."
After the evidence was in, the court charged the jury, and among its instructions excepted to are the following:
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