* Wichita Falls & N.W. Ry. Co. v. Puckett

• Decision Date: 12 October 1915
• Docket Number: Case Number: 6637
• Parties: * WICHITA FALLS & N.W. RY. CO. v. PUCKETT.
• Court: Oklahoma Supreme Court

1915 OK 819

157 P. 112

53 Okla. 463

* WICHITA FALLS & N.W. RY. CO. v. PUCKETT.

Case Number: 6637

Supreme Court of Oklahoma

Decided: October 12, 1915

Syllabus

¶0 1. PLEADING--Plea to Jurisdiction--Defenses Available. Where a domestic railway company is sued in a state where incorporated by one claiming to be an employee of said railway company, and claiming to have been injured by defendant's negligence while doing its work in another state, and summons is properly served on defendant's local agent in the state of its incorporation, held, the defense that the plaintiff was not the defendant's employee or under its control is not available under a plea to the jurisdiction of the trial court.

2. TRIAL -- Injuries to Servant -- Actions -- Evidence--Objections. Where the defendant's plea to the jurisdiction of the trial court has been overruled and it has answered, setting up its defense to plaintiff's action, it is not error to overrule its objection to the introduction of any evidence, and a motion to be discharged on the ground that the court has no jurisdiction to render a judgment against it and on other specific grounds, which are substantially the grounds of defense set up in the answer.

3. TRIAL--Taking Case From Jury--Demurrer to Evidence--Direction of Verdict. The defendant's demurrer to the evidence and motion for an instructed verdict, at the close of the evidence in the trial court, are properly overruled where there is any competent evidence before the jury which, if true, would support a verdict in plaintiff's favor.

4. PLEADING--Reply--Necessity. Where the answer of the defendant contains no new matter and amounts to nothing more than a denial of the petition, no reply thereto is necessary.

5. TRIAL--Instructions--Issues. It is not error for the court in his instructions to the jury to tell them the substance of what is alleged in the petition and answer.

6. SAME. Where the instructions given by the court fairly and reasonably present for the consideration of the jury the issues joined by the pleadings and presented by the evidence, they are sufficient.

7. MASTER AND SERVANT--Trial--Conclusion of Law or Matter of Fact--Instructions--Applicability to Case. The allegation in defendant's answer to the effect that, if it was liable for plaintiff's injuries, his right and defendant's liability were regulated by the federal Employers' Liability Act, April 22, 1908, c. 149, 35 Stat. 65 (U.S. Comp. St. 1913, secs. 8657-8665). stated a proposition of law and did not controvert any allegation made in plaintiff's petition, and hence no issue was made thereby, and the court did not err in failing to mention such allegation in his preliminary statement to the jury; there being no allegation in the answer that defendant at the time of the injury was engaged in interstate commerce, and the defendant having denied plaintiff was injured while in its employment or under its direction or control.

8. TRIAL--Instructions--Error Cured by Subsequent Instructions. Where the court, preceding the numbered paragraphs of his instructions to the jury, purports to state to them the substance of the allegations contained in the petition and the answer and fails to mention the defense of contributory negligence and assumed risk, which are contained in the answer, but gives and reads to the jury instructions requested by the defendant embodying such defenses, held, the error, if any, in failing to mention these grounds of defense in the preliminary statement, was cured by giving the defendant's requested instructions thereon.

9. TRIAL--Instructions--Requests. The trial court is not required to give a requested instruction which is uncertain or needs modification or qualification. If it is not good as requested it is not error to refuse it.

10. MASTER AND SERVANT--Injuries to Servant--Actions--Instructions. The primary test of the master's liability to the servant for injury sustained by the latter is the right of the master to control the servant at the time of the injury, and that the injury was received while the servant was doing the master's work or work directed by him, and was the result of negligence chargeable to the master; and in an action by a servant against the master to recover damages for an injury received upon a defective engine which the master told him to move, it is not error to refuse an instruction telling the jury that before plaintiff can recover he must show, by a preponderance of the evidence, that said engine was under the direct management, control, and supervision of defendant.

11. APPEAL AND ERROR--Record--Questions Presented. It is not always error to allow read to the jury, in rebuttal, certain answers in the deposition previously taken, of a witness who appeared and testified in person at the trial, but who had been dismissed and was absent and could not be obtained at the time the deposition was offered, and the action of the trial court admitting such answers, when the same were not set out in the brief of the complainant, will not be reviewed on appeal.

12. APPEAL AND ERROR--Presenting Questions in Trial Court--Necessity. An alleged error of the trial court complained of for the first time in the appellate court will not be considered therein.

13. CORPORATIONS--Railroads -- Injuries to Servant -- Persons Liable. Where two railway companies are incorporated under the laws of different states, but their tracks connect at the state line, and together form a continuous line of railway extending into both states, and both said companies use the same headquarters, roundhouse, and switch yards, and have the same managing and operating officers, and employ and use the same engineers and train crews, and use indiscriminately each other's engines, cars, and trains, and jointly operate through trains and train crews over both lines of road, and sell continuous tickets and carry passengers over both roads, and deposit the earnings of both companies in one common fund received, kept and disbursed by a common auditor of both companies, and from which common fund the employees and expenses of both companies are paid, and the joint earnings and expenses are respectively credited and charged to each company in proportion to mileage owned by it of the aggregate contiguous lines of railway in the two states, and the same common managing officers of both companies have authority to employ, direct, control, and discharge, at will, the engineers and other employees of both companies, and all of whom may be required to work on either company's line of railway, held, in such case, an engineer so employed and controlled, who is injured by the negligence of one or both of such railway companies, while doing the work of both, may sue one or both companies in the courts of either state, and recover his damages, provided he is otherwise entitled to damages.

* Appealed to the Supreme Court of the United States.

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

Action by J. W. Puckett against the Wichita Falls & Northwestern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Echols & Merrill, Hamon & Ellis, and C. C. Huff, for plaintiff in error.

Stuart, Cruce & Cruce, for defendant in error.

BROWN, J.

¶1 This action was commenced in the district court of Comanche county by defendant in error against the plaintiff in error to recover damages for personal injuries alleged by plaintiff below to have been sustained by him while in the employ of the plaintiff in error. A trial was had before a jury, which resulted in a verdict in favor of plaintiff below for $ 20,000. Defendant's motion for a new trial was overruled, and the case is here on error. In our discussion of the case we will refer to the respective parties in their relation in the trial court.

¶2 Plaintiff's petition alleges, substantially, that he was in the employ of the defendant as a locomotive engineer and was ordered by Davis, defendant's master mechanic, to take engine No. 136 out of defendant's roundhouse at Wichita Falls, Tex., that he got on the engine as directed and attempted to start it, and that certain connections with the lever, used for moving the engine, were broken, so that when he attempted to use the lever to start the engine the lever moved forward and threw him with great force against the front end of the cab. It is alleged plaintiff did not know of the alleged broken parts of the engine or of such defects, but that Davis, defendant's said master mechanic, did know of the same and failed to inform plaintiff thereof. It is further alleged that, as a result of said accident, plaintiff became paralyzed from his waist down, and suffers constant pain caused thereby, and is damaged $ 40,000. It is alleged that, but for such broken parts of the engine, the accident would never have occurred, and that it was due entirely to the defects mentioned, and to the gross carelessness and negligence of defendant's servants in failing to notify plaintiff of such defects, and that said accident and plaintiff's injuries were without any negligence on his part. Plaintiff prayed judgment for his alleged damages, for costs, of suit, and for general and special relief.

¶3 Summons was issued and served on defendant's station agent in Comanche county, and on July 17, 1911, defendant entered its special appearance and moved to quash the summons. The motion to quash was overruled, the defendant excepted and was granted time to plead. On January 5, 1912, defendant filed its plea to the jurisdiction of the court, alleging as ground therefor that when the plaintiff received the injuries complained of, he was not in the employ of defendant, but was in the employ of the Wichita Falls & Northwestern Railway Company of Texas. Plaintiff answered the plea to the jurisdiction, alleging the Wichita Falls & Northwestern Railway Company of Texas and the defendant railway company were one and the same company.

¶4 Defendant's plea to the...