St. Louis-San Francisco Ry. Co. v. Bryan

• Decision Date: 07 April 1925
• Docket Number: Case Number: 14434
• Citation: 237 P. 613,1925 OK 295,113 Okla. 39
• Parties: ST. LOUIS-SAN FRANCISCO RY. CO. et al. v. BRYAN.
• Court: Oklahoma Supreme Court

1925 OK 295

237 P. 613

113 Okla. 39

ST. LOUIS-SAN FRANCISCO RY. CO. et al. v. BRYAN.

Case Number: 14434

Supreme Court of Oklahoma

Decided: April 7, 1925

Syllabus

¶0 1. Negligence -- Contributory Negligence -- Doctrine of "Last Clear Chance."

The doctrine of "last clear chance" is recognized by the courts as an exception to the general rule that the contributory negligence of the person injured will bar a recovery, without reference to the degree of negligence on his part; and, under this exception to the rule, the injured person may recover damages for an injury resulting from the negligence of the defendant, although the negligence of the injured person exposed him to the danger of the injury sustained, if the injury was more immediately caused by the want of care, on the defendant's part, to avoid the injury, after discovering the peril of the injured person.

2. Evidence --Weight--Circumstantial Evidence.

A jury may, if they so decide, accept circumstantial evidence upon one side, and reject positive testimony presented on the same point by the other side.

3. Railroads--Liability for Injury at Crossing--Last Clear Chance.

"The last clear chance" doctrine applies to render a railway company liable for an injury at a crossing to the deceased, whose peril the engineer appreciated, though the deceased's contributory negligence continued up to the moment of his injury.

4. Negligence -- "Contributory Negligence."

"Contributory negligence" is an act or omission on the part of the plaintiff amounting to want of ordinary care which, concurring or co-operating with the negligent act of defendant, is the proximate cause of the injury complained of, and necessarily presupposes negligence on the part of the defendant.

5. Railroads--Speed of Trains--Regulation by Municipality.

Sections 3491 to 3495, Comp. Stat. 1921, giving the Corporation Commission jurisdiction over railroad crossings, do not deprive a municipality of the right to regulate the rate of speed of railroad trains and engines within its limits.

6. Trial--Instructions--Refusal of Requests Covered in Charge.

Where it appears that instructions tendered by attorneys and refused by the trial court were in substance and effect given by the trial court in its general instructions to the jury, the refusal to give instructions asked for does not constitute reversible error.

7. Appeal and Error -- Conclusiveness of Verdict--Excessive Recovery for Personal Injury.

In an action for personal injury the jury is charged with the duty to fix the amount of damages, and its verdict will not be set aside for excessive damages, unless it clearly appears that the jury committed some gross and palpable error or acted under some improper bias, influence, or prejudice, or has totally mistaken the rules of law by which the amount of damage is fixed.

Error from District Court, Kiowa County; T. P. Clay, Assigned Judge.

Action by Ruth Bryan against the St. Louis-San Francisco Railway Company and P. P. Palmer for damages. Judgment for plaintiff, and defendant brings error. Affirmed.

W. F. Evans, Stuart, Sharp & Cruce, and Ben Franklin, for plaintiffs in error.

James R. Tolbert and Embry, Johnson & Tolbert, for defendant in error.

PHELPS, J.

¶1 On the 7th day of October, 1921, Robert E. Bryan, while attempting to drive a wagon across the tracks of the St. Louis-San Francisco Railway Company at the intersection of said tracks and Third street in Hobart, Okla., was struck by a motor train and almost instantly killed. Suit was filed by Ruth Bryan, his widow, on behalf of herself and four minor children, against the railway company and P. P. Palmer, engineer of the train. The parties will be referred to as in the trial court.

¶2 The petition alleges, in substance, that the accident was caused by the negligence of the defendants in that they ran the train over the crossing at a dangerous rate of speed of 20 miles per hour; they failed to give any kind or manner of signal of its approach; they failed to use ordinary care to prevent the accident; they operated and were operating the train in excess of the speed prescribed by the ordinances of the city of Hobart; the motor car was defective and worn out and the brakes were defective, and that the defendant Palmer was incompetent and unskilled. Defendants answered, denying these allegations, and alleged that the deceased was guilty of contributory negligence. Plaintiff replied by general denial.

¶3 The record discloses that the deceased, Robert E. Bryan, on said date was driving his wagon and team east on Third street within the corporate limits of Hobart, Okla., traveling toward the crossing where Third street intersects the railway's tracks, which run north and south through the city. The wagon contained two bales of cotton, on one of which deceased was sitting. The first track before reaching the main line was a track known as the house track, which was full of cars, except for the crossing, and because of these cars and certain buildings deceased was unable to see an approaching train until he had passed over the house track. From some little time prior to and at the time of the accident, there were two locomotives south of the crossing, one of which had been whistling and switching cars, and there was evidence that the deceased was looking south when struck. The motor car train was composed of two cars, the engine proper and a trailer, and was about 100 feet long in all, and was carrying passengers, mail, and baggage. It was propelled by motors, the power being furnished by a dynamo driven by a gasoline engine, and made very little noise when running. On the date of the accident the train was on time, and whistled at the water tank, about a half mile north of the depot. The evidence was contradictory as to whether the whistle was blown or the bell rung after it passed the tank. Several witnesses testified that neither was done. The testimony showed that the train was traveling at a speed of from ten to twelve miles an hour when it struck the deceased, and Palmer, the engineer, testified that he was going not more than 20 miles an hour when he first saw the deceased approach the track; that at that time he was within 75 feet of the crossing and the deceased was 25 feet from it. There was evidence that the train ran approximately 100 feet past the crossing after striking the deceased. Therefore, from this testimony, it appears that the train ran about 175 feet after the deceased was seen by the engineer before coming to a stop. Witnesses who were on the train at the time testified that there were two jolts, close together, the first occurring approximately at the Third street crossing when the brakes were applied, and the second when the motor car struck deceased's wagon and team. One witness testified that at that time they were traveling about 12 or 15 miles an hour and ran 70 or 80 feet after the brakes went on, which was approximately at Third street. There was evidence that this train traveling 15 miles an hour ought to stop within 25 to 30 feet after the application of the brakes. The motor car struck the wagon and team of the deceased, knocked him from the wagon, broke the leg of one of the horses and dragged the other under the train about 100 feet south of the crossing, where the train stopped. The deceased died shortly after the accident, while on the way to the hospital, without regaining consciousness.

¶4 The jury, at the instance of counsel and under instruction of the court, were taken by the bailiff and viewed the premises where the accident occurred and a photograph of the place and of the car which caused the accident were introduced in evidence at the trial. At the conclusion of the trial the jury returned a verdict for the plaintiff in the sum of $ 12,000. Judgment was rendered thereon, from which the defendants have prosecuted this appeal.

¶5 The defendants urge various assignments of error, particularly in giving instructions Nos. 4 and 11; in admitting in evidence ordinance No. 157 of the city of Hobart and in giving instruction No. 8 with reference thereto; in refusing defendants' requested instruction No. 5; and also that the verdict of the jury was excessive and based upon incompetent testimony.

¶6 Defendants contend that the court erred in giving instruction No. 11, which, in our judgment, properly submitted the doctrine of the last clear chance. This rule has been recognized by this court as an exception to the general rule that contributory negligence of the person injured will bar a recovery. It declares that the injured person may recover damages resulting from the negligence of the defendant, although he himself be guilty of contributory negligence, if the injury was caused more immediately by want of care on the defendant's part to avoid the injury after discovering the peril of the injured party. A., T. & S. F. Ry. Co. v. Baker, 21 Okla. 51, 95 P. 433, 16 L. R. A. (N. S.) 825; Oklahoma City Ry. Co. v. Barkett, 30 Okla. 28, 118 P. 350; St. L. & S. F. Ry. Co. v. Clark, 42 Okla. 638, 142 P. 396; Lusk v. Haley, 75 Okla. 206, 181 P. 727; Thrasher et al. v. St. L. & S. F. Ry Co., 86 Okla. 88, 206 P. 212. And where, under the facts of the particular case, there is a question whether the defendant exercised reasonable precautions to prevent an accident, after discovering the perilous position of the injured party, the doctrine of the last clear chance should be submitted to the jury under proper instructions. Thrasher et al. v. St. L. & S. F. Ry. Co., supra.

¶7 It is the contention of the defendants here that the evidence did not disclose such facts as justified the application of the rules above set out. With this contention, we do not agree. Several witnesses testified that neither the bell was rung nor the whistle blown after the train left the water tank, one-half mile north of the crossing. This evidence was contradicted by the engineer and other witnesses. In M., K. & T. Ry. Co. v. Stanton, 78 Okla. 167, ...