Wichita Falls & N.W. Ry. Co. v. Woodman
| Decision Date | 09 October 1917 |
| Docket Number | 5954. |
| Citation | 168 P. 209,64 Okla. 326,1917 OK 481 |
| Parties | WICHITA FALLS & N.W. RY. CO. v. WOODMAN. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
When the uncontroverted evidence showed certain facts to be true it was not error for the court to so instruct the jury.
The defense of contributory negligence is at all times a question of fact for the jury, under article 23, § 6, Williams' Annotated Constitution, and the court should not instruct the jury that a certain fact or circumstance or a given state of facts or circumstances do or do not constitute contributory negligence.
Evidence examined, and verdict held not excessive.
Additional Syllabus by Editorial Staff.
The word "dark" does not necessarily signify a time when, or place where, there is a total absence of light, but may mean nighttime, or after nightfall, or a time when, or place where, there is but little light.
Error from District Court, Beckham County; G. A. Brown, Judge.
Action by R. Woodman against the Wichita Falls & Northwestern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Echols & Merrill, of Elk City, and C. C. Huff, of Dallas, Tex., for plaintiff in error.
Dudley B. Madden, of Walters, for defendant in error.
Defendant in error was a passenger on one of the trains of plaintiff in error en route from Elk City to Kempton. When the train was nearing the latter station, the defendant in error, being under the impression, as he stated, that the train had stopped for the station, jumped therefrom and was injured and in an action to recover for said alleged injuries was awarded a verdict of $3,333.33 1/3, from which this appeal is taken.
The court instructed the jury that the uncontroverted evidence showed certain facts to be true and the giving of this instruction is urged as error. Without setting out the instruction in detail, we will discuss the parts thereof that are claimed to be objectionable, the first of which is:
"That while the train was en route between Elk City and Kempton, the defendant's conductor, Mr. Hagan, directed or requested the plaintiff when the train was approaching the station of Kempton he would go to the front of said passenger coach in which he was riding, so that he could depart from its train without delay."
Upon this point plaintiff testified that when they got pretty near Kempton the conductor came and told him they would stop only a short time, or slow down at Kempton, and when the engine whistled to come to the front and get ready to get off. In this he was corroborated by Mr. Smotherman, who was a traveling companion of plaintiff. The conductor testified that only two passengers were on the train for Kempton that night, and he told them when he took up their tickets to come up to the head end and he would walk on and get their baggage; that the train was a little late and he told them they could be up there and get off while he was unloading their baggage and it might save a little time. There is no conflict in the evidence upon this point.
The second matter complained of is the statement of the court that:
"The plaintiff left his seat and went to the front end of said car and upon the platform steps thereof preparatory to leaving said train without delay as soon as the train should stop at said station."
The criticism leveled at this language is that it in effect excused the plaintiff from all negligence in going to the front end of the car and upon the platform and down upon the steps, and leaving the jury to believe that he had the right to do so, and told the jury that plaintiff at no time had the intention to leave said train until it should stop. In other words, that it constituted an invasion of the province of the jury, and that the court in effect instructed the jury that plaintiff was free from contributory negligence. This criticism of the instruction is not warranted. That the facts stated were true, we think is uncontroverted. However, the court in its general instructions specifically and correctly submitted to the jury the question of whether plaintiff was guilty of contributory negligence, leaving it to the jury to say whether under all of the facts and circumstances plaintiff had exercised ordinary care and caution for his own safety.
The third objection to this instruction is that the court told the jury:
"The evidence shows that it was dark at the time defendants' train reached Kempton, and there were no station lights thereat to assist the passengers in alighting from its train."
Whether this statement by the court constituted prejudicial error depends upon the meaning to be given the word "dark" as used therein. Webster defines "dark" to mean:
"Absence of light; darkness; a place where or the time when there is little or no light; night; nightfall."
From this definition it is seen that the word "dark" does not necessarily signify that degree of darkness which enveloped the Egyptians during the time of the plague or a time when or place where there is a total absence of light but may mean nighttime or after nightfall, or a time when or place where there is but little light. The word is frequently used in ordinary conversation in referring to that period of time after nightfall. Under the uncontroverted evidence in this case the injury occurred on...
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