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

• Citation: 241 P. 188,112 Okla. 256,48 A.L.R. 1447,1924 OK 752
• Decision Date: 16 September 1924
• Docket Number: 13716.
• Parties: ST. LOUIS-SAN FRANCISCO RY. CO. et al. v. CAUTHEN.
• Court: Supreme Court of Oklahoma

241 P. 188

112 Okla. 256, 48 A.L.R. 1447, 1924 OK 752

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

No. 13716.

Supreme Court of Oklahoma

September 16, 1924

Rehearing Granted April 21, 1925.

Syllabus by the Court.

In cases involving negligence, when a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusions from them that the question of negligence is ever considered one of law for the court.

The rule is fairly established that, where the charge of the court does not cover all phases of the case, counsel is bound to call its attention to the omission by an appropriate request or be precluded from making such failure available as reversible error.

A mutual mistake of fact should justify the rescission of a release, executed under the belief that injuries are trivial and temporary, when as a matter of fact they are serious and permanent in their nature, where it appears that the purpose of the release was to compensate for apparent injuries, known injuries, and that serious or permanent injuries were not contemplated by the parties at the time of the execution of the agreement or release, although in its terms the agreement or release is broad enough to cover all injuries, resulting from the particular incident.

Where incompetent evidence is admitted on the trial of the case, to which no exceptions are taken and no motion to strike made the fact that counsel calls the attention of the jury to such evidence in his argument is not such error as will justify a reversal of the case.

All of the instructions given by the court should be considered together and in their entirety, and, when so considered, they state the law correctly and without conflict, it is sufficient, although one or more standing alone might be incomplete.

Commissioners' Opinion, Division No. 3.

Appeal from District Court, Garfield County; James B. Cullison Judge.

Action by R. L. Cauthen against the St. Louis-San Francisco Railway Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

W. F Evans, of St. Louis, Mo., and Stuart, Sharp & Cruce and Ben Franklin, all of Oklahoma City, for plaintiffs in error.

Simons McKnight & Simons, of Enid, for defendant in error.

JONES C.

This action was instituted in the district court of Garfield county, Okl., on the 20th day of May, 1921, by the plaintiff, R. L. Cauthen, appellee, against the St. Louis-San Francisco Railway Company, A. J. Anson, and R. Aaron, defendants in the trial court and appellants herein, to recover damages in the sum of $50,000 for personal injuries sustained by the plaintiff, while in the employment of the defendant railway company as a head brakeman on a freight train. While in the discharge of his duties as a brakeman on the train, in the city of Perry, Okl., he sustained the injuries here complained of. Plaintiff alleges that, while standing on the gangway or space between the tender and the caboose of the engine, with his back to the tender and his right foot on the platform or floor of the cab of said engine, said cab or engine and tender buckled, or dipped together, which was caused by a defective roadbed; that said roadbed had given way, and that at a joint or where the rails connected there was a sag or hole in said roadbed, and that by reason of same the engine and tender dipped together, and that he was caught between said tender and engine, and his right knee was forced through the wall of the cab, and that his right hip joint was dislocated and seriously injured, and alleges that the condition and results thereof to have been caused by the negligence and carelessness of the defendants in maintaining said track and roadbed.

The defendants answer and generally deny all of the allegations contained in plaintiff's petition; and, further answering, aver that the injuries complained of were the result of the negligence contributed by the plaintiff, and without which the injuries alleged to have been sustained would not have occurred, and that the injuries received were the result of one of the dangers incident to the operation of said engine and incident to the employment in which plaintiff was engaged, and that plaintiff assumed all the risk incident to and arising from the operations of trains and engines on which plaintiff might be placed, and, further answering, aver that on the 24th day of July, 1920, plaintiff and defendant railway company entered into an agreement by the terms of which the defendant railway company paid the plaintiff the sum of $800, which was accepted in full and complete satisfaction of all claims that the plaintiff might have for damages, etc.

The plaintiff filed his reply and denied all of the allegations and matters contained in defendants' answer except such as are admitted. Plaintiff admits the contract or agreement referred to in defendants' answer, but alleges the same to be null and void, and that same does not operate or have the effect of releasing the said defendants from plaintiff's cause of action, for the reason that said release was obtained by said defendants from the plaintiff by fraud perpetrated by the said defendants upon the said plaintiff, and further for the reason that said release was executed under a mutual mistake of fact between the plaintiff and the defendants, and, further replying, in substance, says that immediately following the injuries complained of the plaintiff was placed in a hospital at Enid, Okl., where he was under the treatment and care of the doctors and surgeons of the defendant railway company, and within a few days he was sent to a hospital in St. Louis, Mo., where he was thoroughly examined as to his injuries by doctors and surgeons representing the railway company, and it was discovered that he had sustained a fracture of the acetabulum, and that after several months he was discharged from the hospital, and was advised by the surgeon in charge that he would fully recover from the injuries sustained, but admonished not to return to work, and especially any labor which would require any physical exertion, until all soreness had left his hip; that he returned to Enid, Okl., his place of residence, and after a short time entered the employment of the defendant railway company on a passenger run, which seems to have been light work and required no special physical exertion, and that some three or four months thereafter returned to his old job as brakeman on freight train, for the reason that the compensation was better, and seems to have encountered no inconvenience or difficulty in performing the labor incumbent upon him, as such brakeman, until some three or four months thereafter, at which time his hip began to give him some pain, and in the course of some few weeks was forced to give up his position and return to the hospital at St. Louis, Mo., where, after several examinations, he was advised by the doctors in charge that he was suffering from a process of absorption of the hip, and that the trouble was incurable, and that he was permanently disabled; that he returned home, and that he has continued to suffer from the injuries, and his hip joint has become so impaired that his leg is of no use to him, and that he is permanently disabled; and that he is not bound by the agreement or release entered into by the defendant railway company, for the reason that both plaintiff and defendant were laboring under a mistake of fact, as to the real condition of plaintiff and the seriousness of his injuries at the time the agreement was made, and did not and could not have had in mind nor contemplation the facts and conditions as they existed, and therefore is not binding.

On the issues thus joined, the case was thereafter submitted to a jury, and resulted in a verdict in favor of the plaintiff for $22,275. Defendants filed a motion for a new trial, which was overruled, and judgment rendered by the court in accordance with the verdict of the jury, from which order and judgment of the court the defendants prosecute this appeal, and set forth various specifications of error, but submit their case on these different propositions:

First, that the verdict of the jury is not supported by sufficient evidence.

Second, that the trial court erred in the failure to instruct the jury on the question of assumption of risk.

Third, that the trial court erred in overruling the demurrers of the defendants to plaintiff's evidence, and in overruling the separate motions of the defendants for an instructed verdict, for the reason that it is shown by all the evidence introduced by plaintiff and defendants that plaintiff's injuries were the result of an assumed risk.

Fourth, that the trial court erred in holding that the settlement between the plaintiff and the railway company, regarding plaintiff's injuries, pleaded and proven by the defendants, was not a complete bar to plaintiff's recovery.

Fifth, that the rights of the defendants were prejudiced by the conduct of plaintiff's counsel in the argument to the jury by continually referring to the repairs made by the railway company immediately subsequent to the accident, and the court in admitting evidence in regard to said repairs.

Sixth, that the trial court erred in his instructions to the jury.

In the first proposition, appellants contend that the evidence was wholly insufficient to establish the allegations of negligence on the part of plaintiff, and cite many authorities in support of their contention, but base same on the theory that the injury complained of was the result of and caused by, the tender and engine coming...