Wichita Falls & N.W. Ry. Co. v. Davern
| Decision Date | 10 December 1918 |
| Docket Number | 9457. |
| Citation | 177 P. 909,74 Okla. 151,1918 OK 700 |
| Parties | WICHITA FALLS & N.W. RY. CO. v. DAVERN. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 13, 1919.
Syllabus by the Court.
By virtue of section 5088, Rev. Laws 1910, a deposition intended to be used on the trial must be on file at least one day before the day of trial, but section 5090, Rev. Laws 1910 provides that exceptions to depositions as a whole can be made only in writing and filed with the papers in the case and where depositions are received and filed the day of trial but before the commencement thereof, and both parties having knowledge of the filing announce ready for trial without the party against whom the deposition is intended to be used requesting additional time to examine and prepare and file exceptions, held, that he thereby waived the time allowed by the statute, and a formal verbal objection to the deposition at the time it was offered in evidence was properly overruled.
Under the federal Employers' Liability Act April 22, 1908, c 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665], the servant has a right to assume that his employer has furnished him a safe place to work and has provided him with safe appliances with which to work. He assumes all the normal risks incidental to his employment that are known to him, or which, by the exercise of ordinary diligence and prudence by a person of reasonable caution and intelligence, are ascertainable, and does not include those risks incidental or attributable to the negligence of the employer, until he becomes aware of such negligence and the risks arising therefrom, and in that event it must appear that he not only knew the negligence or defect arising therefrom, but that it endangered his safety, or else the danger must have been so obvious that a person of ordinary prudence in like circumstances would have realized it, all of which are questions of fact for the jury.
When a motorcar is being driven by the foreman of a section hand crew at an excessive rate of speed, which causes it to leave the track with resulting injuries to a member of the crew, he will not be deemed to have assumed the risk incident to such excessive rate of speed by a failure to protest against it, and a requested instruction to that effect was properly refused.
Additional Syllabus by Editorial Staff.
A verdict of $20,000 awarded a section hand 47 years of age, able-bodied, and industrious, for injury to one ankle, the breaking of a wrist, shoulder, and collar bone, the wasting of one arm and hand, the loss of one eye, and the crushing of one side of his face, totally incapacitating him from any labor, was not excessive.
Commissioners' Opinion, Division No. 3.
Error from District Court, Jackson County; Frank Mathews, Judge.
Action by W. A. Davern against the Wichita Falls & Northwestern Railway Company. Verdict for plaintiff, motion for new trial denied on condition of plaintiff's remittitur of certain amount, and judgment for plaintiff; and defendant brings error. Affirmed.
Robinson & Whiteside, of Altus, for plaintiff in error.
S. P. Jones, of Marshall, Tex., and S. B. Garrett, of Altus, for defendant in error.
In this opinion the litigants will be referred to in the relative positions as they appeared in the lower court.
On the 2d day of June, 1916, the plaintiff instituted suit against the defendant in the district court of Jackson county, Okl., to recover the sum of $100,000 damages for personal injuries to him caused by the negligent acts of the defendant and its officers, agents, and servants.
In the petition, among other things, it is alleged that the plaintiff was at said time a citizen and resident of Atica, Mass., and at the time of the injury was an employee of the defendant as a section hand, and that the defendant at said time was engaged in interstate commerce as a common carrier, and that he was engaged in interstate commerce, in that he was preparing and assisting in keeping up the track and roadbed over which the defendant carried on its business as a common carrier, and that, at the time of receiving the injury of which complaint is made, he was returning from work upon a motorcar which was propelled by means of a gasoline engine in charge of Sam Beggs, who was the foreman and in charge of the section hand crew at the particular time of the injury, and that the proximate and direct cause of the injury was defective rails and roadbed and the propulsion of the motorcar by the foreman at an excessive and high rate of speed, which caused the motorcar to leave the track, resulting in the consequent infliction of the injury to the plaintiff.
The answer was a general denial and a plea of contributory negligence on the part of the plaintiff and assumption of risk.
On the 16th day of October, 1916, the case was tried to the court and jury which resulted in a verdict in favor of the plaintiff for the sum of $25,000. A motion for a new trial was filed and presented to the court, and, under penalty of granting the same, the plaintiff was required to file a remittitur of $5,000, which was done, and the court thereupon overruled the motion for a new trial and rendered judgment in favor of the plaintiff for the sum of $20,000, from which the defendant appealed to this court, and the case is now before us for review.
We desire to compliment counsel for filing briefs that are concise and to the point on all matters discussed and exceptionally free from redundant matter.
The first question called to our attention is the action of the court in the admission of depositions taken by the plaintiff in the state of Massachusetts. The depositions were taken upon notice, at which time plaintiff was represented by John E. Reagen, who conducted the taking thereof on behalf of the plaintiff, and the defendant was represented by Wm. O. Cutler, who conducted the taking thereof on behalf of the defendant. The depositions are cumulative of the testimony of the plaintiff. The record discloses that the depositions were filed about 9:30 o'clock in the morning, and it is claimed in the brief and oral argument of plaintiff, and not denied by defendant, after the depositions had been filed and published they were handed to and examined by the defendant, and the case was called for trial an hour later, when both the plaintiff and defendant announced ready for trial. During the afternoon of the same day, the depositions of Elizabeth A. Davern, George B. Clough, James F. Burns, James H. Burk, James R. Monteith, Alfred T. Dean, David J. Murphy, and John J. Ahern were offered in evidence, and the defendant objected to the introduction of the depositions in evidence upon the ground and for the reason that they had not been on file one full day previous to the time of the commencement of the trial, which objection was by the court overruled, and it is now urged in overruling the objection the trial court erred. The objection to the introduction of the depositions was made verbally at the time the depositions were offered in evidence, and it is claimed that section 5088, Rev. Laws 1910, is sufficient authority for excluding the testimony thus offered:
"Every deposition intended to be read in evidence on the trial, must be filed at least one day before the day of trial."
The statute had a salutary and wholesome purpose in view in its adoption and is grounded on wisdom and justice. By this statute it was intended that no unfair advantage should be taken by a party intending to prove his case either partially or in whole by depositions. Unless where the right is inherent, as in equity in certain cases, there is no authority to cause depositions to be taken except in those cases where the right is conferred by statutory enactment, and, the right to take and use depositions as evidence being created and controlled by statute, all of the provisions of our statute relative to taking and returning and using depositions must be strictly followed. Depositions are not infrequently taken in foreign states, and even in foreign countries at a place located a great distance from that of the place of the trial, and it is often inconvenient for the opposing party to be present in person or represented by counsel during the taking thereof, and the statute above quoted was enacted for the purpose of preventing accident and surprise, and, as above stated, for the purpose of preventing the party taking the deposition from gaining an unfair advantage by withholding the depositions until the exact moment they are desired to be introduced in evidence, by requiring him to have the depositions on file at least one day before the day of trial. This statute has for its object another purpose, and that is, to give the opposing party an opportunity to examine the depositions for the purpose of ascertaining what, if any, exceptions he may desire to lodge against them. It is manifest the statute has to do with the taking and returning of depositions, but the benefits afforded by this statute are more in the nature of a privilege than an absolute right and may be waived by a party for whose benefit it was intended.
Section 5090, Rev. Laws 1910, provides:
"Exceptions to depositions as a whole shall be in writing, specifying the grounds of objections, and filed with the papers in the cause before the commencement of the trial."
This statute, like section 5088, supra, also has to do with taking and returning depositions, and more. In addition to having to do with taking and returning depositions, it has to do with exceptions to depositions, where such exceptions go to the "whole thereof." This statute, like section 5088 supra, was enacted for the purpose of preventing accident and surprise from intervening as against the party taking...
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