Sand Springs Railway Co. v. Westhafer

Opinion by THOMPSON, C. This action was commenced by Daisy Westhafer, defendant in error, plaintiff below, against the Sand Springs Railway Company, a corporation, plaintiff in error; defendant below, filing her petition in the district court in and for Tulsa county, on the 27th day of *90 December, 1917. The parties will be referred to as plaintiff and defendant, just as they appeared in the lower court. The petition alleges, in substance, that plaintiff was a married woman, living in Tulsa; that the defendant is a corporation, engaged in the business of operating a line of- steam and electric railroad between the cities of Tulsa and Sand Springs, Okla., and was so engaged on the 16th day of May, 1917, and was running passenger and freight trains on said road and line, carrying p>as-sengers and freight thereon for hire; that on said date she was a passenger on one of its electric coaches, running from Sand Springs to Tulsa, having paid her fare, and that said coach was operated by electricity, and that near the present site of the city waterworks of the city of Tulsa, a locomotive engine, being operated by defendant, was standing upon the tract, and, in the language of the petition, which is as follows: “That on the night in question and at the time and place alleged, one of said locomotive engines was standing upon the track. That after leaving Sand 'Springs Park plaintiff and her husband and other passengers aboard said car discovered that there was a defect in the headlight of said coach, and that the same would at intervals cease to work and operate; that said trainmen knew of said defect and commented upon same, but continued to run said ear, notwithstanding said defect, along a dark track without the headlight; that at the point above described, while operating said car without said headlight at a rapid rate of speed, viz., between 10 and 15 miles an hour, and without being able to see in advance of said car on account of darkness any distance within which they could have safely stopped said car in time to prevent an accident, they ran said car into the rear end of said locomotive engine with such an impact as to crush in the front vestibule of said car and hurl said passengers therein from their seats to the floor; that before said shock said motorman jumped from his position in said ear to the ground and cried out to the passengers to jump, creating a panic in said car; and said conductor rushed to the rear part of said car and advised as he ran down said coach all passengers remain seated, and at this juncture the impact came and hurled the plaintiff bodily against the smashed in part of the said vestibule, she striking against an iron rod near the rough and broken timbers, bruising and maiming here and causing nervous collapse and unconsciousness.” —after which in the petition is contained the special injuries complained of, and then follows an allegation of the cause of the injury, as follows: “That said injury was due to the neglect and carelessness on the part of said employes aforesaid in driving and operating said car, as aforesaid, and the plaintiff has reason to believe that said injury will be permanent in a great measure throughout the balance of her natural life.” The petition ends with a prayer for the recovery of the sum of $35,000 damages and costs, to which petition the .defendant filed its answer, admitting that it is a corporation, engaged in the business of operating a line of steam and electric railroad between the. cities of Tulsa and Sand Spring.', and was so operating said road on the 16th day of May, 3917, by running passenger and freight trains on said road, carrying passengers and freight, for hire, and denying each and every material matter, allegation, and things alleged in plaintiff’s petition. Upon these issues tendered the cause was tried to a jury on the 6th and 7th days of January, 1920, and the jury returned its verdict in favor of the plaintiff and against the defendant in the sum of $5,100. Motion for new trial was filed and overruled. Judgment was rendered upon the verdict of the jury in favor of the plaintiff and against the defendant in the sum of $5,100, together with interest thereon at the rate of six per cent, per annum from the 6th day of January, 1920, and costs, and the cause comes to this court regularly upon appeal from said judgment. The brief of defendant presents only three propositions for decision, the first being assignment of error No. 4, which is as follows: “That the court erred in giving to the jury instruction No. 7, which instruction is as follows: ‘'Tou are further instructed that if you find by a preponderance of the evidence that on the night of the accident, the plaintiff was a passenger on one of the electric passenger cars of the Sand 'Springs Railway Company, proceeding from Sand Springs to Tulsa, Okla., and that the' said electric passenger car came into collision with a locomotive engine on the tracks of the Sand Springs Railway Company, and if you find that the plaintiff was injured and that the collision was the proximate cause, as in these instructions defined to you, of the injury complained of, the court instructs you that your verdict should be for the plaintiff and you will fix her recovery at such sum as you find will compensate her for the injuries received, not, however, beyond the sum sued for; unless you further find, by a preponderance of the evidence that refuse from the city of Tulsa, or other substances, was being burned in the imme- *91 díate vicinity of the scene of the collision by persons other than the officers, agents, and employes of the Sand Springs Railway Company, and over whom the Sand Springs Railway Oo. exercised no control and that such burning caused a large quantity of smoke, sufficient to obstruct the' tracks, and any objects thereon in front of the electric passenger car and that the defendant's agent, servants and* employes could not, by reason of such smoke, in the exercise of ordinary oare, as herein defined to you, have avoided the accident and prevented the injury of the plaintiff and the court instructs you that the burden of establishing these facts by a preponderance of the evidence is upon the defendant.’ Given and excepted to by defendant. “Owen Owen, Judge. “To the giving of which instructions, plaintiffs in error, at the time, excepted and had its exceptions noted of record.” The second proposition argued includes assignments of error Nos. 5, 6, 7, and 8, which are as follows: “5. That the court erred in refusing to submit to the jury defendant’s reuqested instruction No. 1, which is a sfollows: ‘You are instructed that if you shall find from the evidence that the headlight was burning on the car immediately prior and at the time of the alleged accident, then your verdict should be for the defendant.’ Requested by defendant and refused.” “Owen Owen, Judge. “6. That the court erred in refusing to submit to the jury, defendant’s requested instruction No. 2, which is as follows: ‘You are instructed that if you find and believe from the evidence that the accident and resulting injury to plaintiff, if any, was caused by the burning of trash, smoke or other causes not under control of the defendant, then your verdict should be for the defendant.’ Requested by defendant and refused “Owen Owen, Judge. “7. That the court erred in refusing to submit to the jury defendant’s requested instruction No. 3, which is as follows: ‘You are instructed that if you find and believe from the evidence that the accident, if any, and resulting injury, if any, to plaintiff was caused toy other negligent acts of the defendant, such as its having a switch engine on the track, or other negligent acts, it any, still plaintiff would not be entitled (o recover on account of these acts, she having alleged in her petition the failure to have a headlight burning on the ear to be the sole and proximate cause of the alleged accident, and before you can find for the plaintiff you must find that there was no headlight burning at the time of the alleged accident and that defendant’s failure to have a headlight 'burning was the proximate cause of the injury.’ Requested by defendant and refused. “'Owen Owen, Judge. “8. That the court erred in refusing to submit to the jury defendant’s requested instruction No. 4, which is as follows: ‘You are instructed that plaintiff . hiasl alleged in her petition that on the night of the alleged accident the car was running without a headlight, and that the burden is on the plaintiff to prove this allegation by a fair preponderance of the evidence, and if you believe from the evidence that on the night in question and just prior to the accident alleged to have occurred and as a result of which plaintiff alleges she was injured there was no headlight burning on the car and that the failure of the defendant to have a headlight burning on the car was the proximate cause of the injury, then you should find for the plaintiff, but if you find and believe from the evidence that the accident, if any, from which plain-, tiff claims to have been injured, if you shall find she was injured, was caused from any other cause or causes than the failure of plaintiff to have the headlight burning, if you shall find it was not burning at the time or just prior to the accident, then your duty will be to find for the defendant.’ ” Requested by defendant and refused. “Owen Owen, Judge.” The third proposition argued by defendant is that the verdict of the jury is excessive and the damages awarded appear to have been given under the influence of passion and prejudice on part of the jury. The other assignments of error appearing in the petition in error, not having been presented; or argued in brief of counsel, will be treated as abandoned upon the authority and decision of this court in case of Whitehead v. Goyette, 83 Okla. 51, 200 Pac. 850; Hudson v. Johnson, 87 Okla. 128, 209 Pac. 325, and other authorities. The argument of counsel for defendant upon the first proposition as to error of the court in giving instruction No. 7, supra, has been arranged under three heads as follows: j “(a) Plaintiff’s petition alleged specific acts of negligence, namely, a defective headlight, and contained no general allegation of negligence, therefore an instruction attempted to be given on the doctrine of res ipsa loquitur was error. “(b) If it be admitted for sake of argument that the doctrine or res ipsa loqui-tur was one which could be applied under the pleadings, instruction No. 7 did not correctly state this doctrine, but, in effect, *92 told, the jury that the carrier was insurer of its passengers. “(c) The instruction shifts the 'burden of proof to the defendant, whereas even in cases where presumption of negligence exists, the main burden of proof does not shift.” And it will be necessary to review in part the allegations of plaintiff in her petition and answer of defendant, and upon dose examination of the petition we find it contains the averments that the plaintiff was a passenger on board the car of defendant for hire; that the defendant was operating the railroad both by steam and electricity, having a locomotive in charge of its sevrants and employes on the same Lack with the car, which was also operated by the defendant’s servants, agents, and employes at the time of the accident: that the car, upon which the plaintiff was riding. had a defective headlight, and was being run by defendant company at a rate of speed of 10 or 15 miles per hour through the darkness, and that there was a collision between the steam locomotive and tbe electric car, in which she claims damages, and Hint said injury was due to negligence and ciu'elessness on part of tbe employes of defendant in driving and operating the car on which she was riding, under the circumstances above set forth. The defendant’s answer admits that it is a corporation, engaged in the business of operating a line of steam and electric railroad between the cities of Tulsa and Sand Springs, and was so engaged in operating, at the time of the accident, passenger and freight trains on said line of road, carrying- passengers thereon for hire. Under the statute law of this state— “A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” (iSeetion 4891, Comp. Stat. of Okla. 1921.) And, in the next section, No. 4892, the statute provides: “A carrier of persons for reward is bound to provide vehicles safe and fit for the purposes to which they are put, and is not excused for default in this respect by any degree of care.” Then, it is made the statutory duty of the defendant company, where, as in this ease, it admits that it was operating said railroad both by steam and electricity and carrying passengers and freight for hire, to use the utmost care and diligence for the safe carriage of persons, and it must provide everything necessary for that purpose, and is bound to provide vehicles fit and safe for the purposes for which they are used, and in the instant case it was the duty of the defendant company to provide a suitable oar, properly equipped and in good working order, and to provide a clear (rack for the running of the ear for the. purposes for which the same was being used, to wit: in carrying passengers from Sand Springs Park to the city of Tulsa. And, upon failure to do this and proof being offered by plaintiff of these facts of failure, on part of the company to discharge its plain du'y, as defined by the statute, a prima facie case arises of negligence on part of the carrier. The railroad company necessarily has its schedule for the running of its ears and the record discloses that the employes of the íailroad knew that the car upon which the plaintiff was riding was due to arrive at the point ’where the collision occurred, as shown by the evidence of the employes of the railroad, who were operating the engine, and while it might have been better for the attorneys on part of the plaintiff in this case to have alleged specifically that the accident Was caused by the negligence of both crews, yet they did allege the fact that this locomotive was on this track, and the proof shows that, it was backing toward tbe car upon which tbe plaintiff was riding, without any light, on the same, and that under those conditions the operators of the electric car ran into it and the xdaintiff vías injured as set forth in the petition. We cannot agree with counsel that we should write into that part of plaintiff’s petition the words, "without a headlight,” where it is alleged, “-that said injury was due to the neglect and carelessness on part of the employes aforesaid in driving and operating said car as aforesaid, “for we do not think that this part of plaintiff’s petition admits of the construction placed upon il by counsel for defendant in their brief. And we cannot agree with the counsel that apon tbe state of pleadings in this case, plaintiff is held to the bard and fast rule to prove a defective headlight as the only specific act of negligence on the part of the defendant company. The further fact that the car was being operated in the darkness at a rapid rate of speed along a single track that was being used by the company for the operation of locomotives and freight cars, was sufficient to relieve the plaintiff from being held to the one single specific act of negligence for her recovery in this case, as *93 contended for by counsel for defendant, and she iwias entitled to recover under the facts in this case and under the issues joined, and the facts proven, for an invasion of her statutory right to have a clear track and a safe conveyance to the point of her destination, for which she had paid her fare, unless defendant could- counteract by proof this state of facts. This being true, then it is conceded -by counsel for defendant in their brief that the doctrine of resUpsa loquitur obtains, and the authorities cited by counsel upon subdivision Cal of their first proposition do not apply. We have carefully examined the authorities cited, and we find that the courts of the several states of this- Union are not in accord upon this doctrine, and that in this jurisdiction there is no case absolutely- decisive of this question, and while there is some room for doubt as to whether this doctrine applies in the instant case, yet we are of the opinion that under the provisions of our statute quoted, supra, and from the further fact that the defendant accepted the pleadings and joined issue With the plaintiff, and- offered proof upon the issues joined, and offered proof to show as an independent defense that on account of burning trash a smoke screen intervened between the locomotive and the car, so as to obstruct the vision of the employes, as an intervening cause of the accident, over which they had no control, we are of the opinion that the contention under subdivision (a) is not sufficient grounds for reversal of the judgment in this cause. As to subdivision (b), we do not think that this is well taken for the reason that we cannot read into the instruction complained of that the court did or intended to make the defendant company an insurer of its passengers. Under subdivision (c), attorneys argue that the court shifted the burden of proof upon the defendant, and under this head it will be necessary for us to examine the other instructions given by the count, as the rule of law is that you cannot single out any one' instruction, but must consider each and every instruction together as a whole, and in applying this rule, on an examination of the record, we find that the court instructed the jury in the.first instruction as follows: “You are instructed that the burden of proof is upon the plaintiff in this case, and it is necessary, before she is entitled to a verdict in her favor at your hands, that she should establish by a preponderance of the evidence all the material allegations of her petition” — after which follows the general instruction on how to determine the preponderance of the evidence, and the instruction closes in the following words: “If you determine that the plaintiff has the greater weight of the evidence on his side, then he has sustained successfully the burden of proof and your verdict should be for the plaintiff in -whatever amount that he may be entitled to recover under the evidence in this case and under these instructions. On the other hand, if the - evidence should be evenly balanced in your judgment, or if the weight of the evidence should be upon the side of the defendant, then the plaintiff has failed to establish his case by a preponderance of the evidence, and your verdict should be for the defendant.” The instructions show the incorporation of all the allegations of plaintiff’s petition, and the court instructed that the burden of proof was upon the plaintiff, and that before she was entitled to a verdict in her favor, she should- establish by a preponderance of the evidence all of the material allegations of her petition, and that the jury must determine that the plaintiff must have the greater weight of the evidence on her side before she could recover, or that if the evidence were evenly balanced, or if the weight of the evidence should be upon the side of the defendant, then the plaintiff had failed to establish her case by a preponderance of the evidence and the -verdict should be for the defendant. And in the instruction complained of. the court instructed the jury that it must find by a preponderance of the evidence that the plaintiff was a passenger on the electric passenger oar on the night of the accident, and that the said electric passenger car came into collision with a locomotive engine on the track of the defendant, and that the plaintiff was injured, and that the collision was the proximate cause of the injury complained of before- the jury would be entitled to return a verdict in favor of the plaintiff. And the court further instructed the jury, under instruction No. 7, as to defendant’s only independent defense, the smoke screen, and correctly, in our judgment, instructed the jury that the burden of proof was upon the defendant to show the independent defense of -the intervening cause of the accident, namely, the smoke screen, and, in our opinion, did not shift the main burden of proof to the defendant, as contended for by counsel for defendant under subdivision (c). The plaintiff having introduced evidence that -she wa-s a passenger on defendant’s ear, and that such car, collided, with the locomotive operated by defendant, under the' conditions set forth in her petition, caused *94 by the locomotive standing upon the track and tiie defective headlight, and running in the dark at a high rate of speed, and showed to the satisfaction of the jury that the injury complained of, and the extent thereof, was the direct and proximate result of such collision, she made a prima facie case, which raised the presumption of negligence and the 'burden of proof then shifted to the defendant to overcome such presumption to the satisfaction of the jury. The defendant then introduced its evidence in contradiction of the allegations of plaintiff’s petition, and the testimony of her Witnesses as to the speed the car was running, as to the defective headlight, as to the location of the locomotive and as to the general condition under which the car was being operated, and introduced proof upon its independent defense that the view was obstructed because of the smoke screen from the trash that was being burned along side of the track by an agency not under the control of the defendant. This being true, then upon the authority of decision of this court, in the ease of Missouri, O. & G. Ry, Co. v. Vandivere, 42 Okla. 427, 141 Pac. 799, we are of the Opinion that this part of the instruction complained of by defendant in brief of its counsel, when considered with the other instructions given, was correctly given. This court decided, in the case of Chicago, R. I. & P. Ry. v. Pitchford, 44 Okla. 197, 143 Pac. 1146: “As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, constitutes negligence per se. “Where the circumstances of a case are such that the standard of duty is fixed and defined by law, and is the same under all circumstances, the omission of this duty is negligence.” This court again, in the case of Slick Oil Co. v. Coffey, 72 Oklahoma, 177 Pac. 915, in the body of the opinion, uses this language : . “This court, in accordance with the great weight of authority, has announced the rule that the violation of a public duty enjoined by law for the protection of persons or property constitutes negligence per se.” The court, in instruction No. S, following after instruction No. 7, used.this language: ‘Wou are instructed that in arriving at your verdict in this ease, you will not single out any particular instruction or paragraph of any instruction given you herein, but you will Consider the instructions as a whole and in their entirety and consider each instruction in connection with all the others given in this case, and so apply such instructions in their entirety to the evidence before you, and in so doing endeavor to arrive at • a just and true verdict under all the instructions and all the evidence in the case, and return such verdict into court.” This court, in the ease of B. M. Snyder v. J. C. Stribling, 18 Okla. 168, 89 Pac. 222, held: “Although an instruction given may misstate the law, if others are given which when taken together with the improper one make it apparent that the jury was not misled thereby, the same will not constitute reversible error.” This court, also, in the case of Mitchell v. Altus State Bank, 32 Okla. 628, 122 Pac. 66, held: “Where it appears from the evidence that a verdict is so clearly right that, had it been different, the court should have set it aside, such verdict will not be disturbed merely for ¡the reason that there is error found in the instructions.” Again, this court in the case of New et al., Receivers, v. Hughes, 80 Okla. 129, 194 Pac. 897, held: “Where a judgment is rendered and from an examination of the entire record it appears that the instructions to the jury complained of and requested instructions refused have probably not resulted in a miscarriage of justice nor constitute a substantial violation of a constitutional or statutory right, this court is powerless to reverse such judgment.” This court, again, in the case of Slick Oil Co. v. Coffey, supra, held: “Where instructions given, taken together and considered as a whole, fairly present the law of the case they will be held sufficient.” In this case we have carefullly examined the record and authorities cited in the able and exhaustive briefs of counsel on both sides and the statute law of this state, defining the duties of carriers, and the facts surrounding the Collision, in which the plaintiff received the injury complained of, and we are of the opinion that the instructions, given by the court, fairly state the law of this case, and there is sufficient evidence to support the finding of the jury on the ground of actual negligence on part of the defendant, and that no reversible error occurred in the trial of said cause upon the first proposition argued by defendant in the brief of its counsel. We think that the correct conclusion was arrived at in this case and that the verdict is just and pfioper. The attorneys for defendant in their brief complain that the court erred in re *95 fusing to give, in charge to. the jury, the four requested instructions, but upon a careful examination of the record we find that the four instructions, as heretofore set forth in this opinion, were requested and refused by the court and upon examination of the written instructions requested we find this indorsement at the close of each instruction : “Requested by defendant and refused. “Owen Owen, Judge.” But nowhere, either at the close of the instructions or in the clerk’s minutes or the stenographer’s record, do we find that an exception was reserved or saved by counsel for defendant to such refusal. . Section 542 of vol. 1‘, Oomp. Stat. 1921, sets out the manner by which exceptions to instructions must be saved in order to entitle the Supreme Court to review the action of the court in its refusal to give requested instructions to the jury, and is as follows: “A party excepting to the giving of instructions, or the refusal thereof, shall not be required to file a formal bill of exceptions ; but it shall be sufficient to write at the close of each instruction, ‘Refused and excepted to,’ or, ‘Given and excepted to,’ which shall be signed by the .judge.” This court, in the case of Kinney v. Williams, 66 Okla. 167, 168 Pac. 196, in construing this statute, held: “In order to bring up for review to this court the instructions of the court, exceptions thereto must be saved in the manner prescribed by the statute, and the error in giving the same must be assigned in the ■motion for new trial and in the petition in error.” This court, again, in the case of Fullerton-Stuart Lumber Co. v. Badger, 59 Okla. 135, 158 Pac. 376, held: “In order for a party to avail himself of an alleged error in an instruction given to the jury by the court, or the refusal to give a requested instruction, it must appear from the record that the instruction complained of, or the refusal to give the requested instruction, was duly excepted to at the time.” In said opinion, in support of the above construction of this law, the court cites: Shuler v. Hall, 42 Okla. 325, 141 Pac. 280; Young v. M., O. & G. R. Co., 41 Okla. 611, 145 Pac. 1118; Incorporated Town of Stigler v. Wiley, 36 Okla. 291, 128 Pac. 118; Straughan v. Cooper, 41 Okla. 515, 139 Pac. 265; Shuler v. Collins,, 40 Okla. 126, 136 Pac. 752. The rule is settled in this jurisdiction that where a party seeks to avail himself of alleged errors in the refusal to give instructions requested, the refusal must be excepted to at the time and in the manner and form, as prescribed by the above quoted statute. This not having been done by the attorneys for the defendant in the court below, nothing is presented to this court for review upon this preposition and we are, therefore,' of the opinion that upon this phase of the case we cannot consider the errors complained of. As to the third proposition raised by attorneys for defendant in their brief, that the amount awarded by the jury as damages is excessive and appears to have been given as a result of passion and prejudice on part of the jury, we cannot agree with counsel for the reason that the evidence discloses that the defendant was severely injured, was crippled in one of her arms, sustaining severe bruises on parts of her body, suffered from nervous shock and that she was pregnant.at the time of the injury, being about five and a half months advanced, that she was compelled, on advice of her physician, to g'o to. bed and remain in bed until the full term of her pregnancy, or until her child was born, and during all that time she was threatened With miscarriage and suffered great pain, and was still suffering great pain and nervousness. at the time of the trial, and we do not feel that the sum of $5,100, awarded by the jury, is excessive, nor is there anything in the record to indicate that the jury was influenced by passion or prejudice in awarding this ¿mount, and there is nothing contained in the argument of counsel for defendant in their brief, except that counsel argue the size of the verdict as indicative of prejudice on part of the jury. It is our opinion that the verdict for $5,100, as found by the jury and approved by the trial court, should not be disturbed on appeal. In support of the above finding we cite the case of City of Tulsa v. Wells, 79 Okla. 39, 191 Pac. 186. In the case of Muskogee Electric Traction Co v. Wimmer, 80 Okla. 11, 193 Pac. 101, it was held by this court: “It would be impossible to recount all the factors which enter into the common and general notions of what is fair and just as a basis to measure the damages for personal injuries. There can be no absolute standard to measure such damages, and a wide latitude of discretion is necessarily left to the good sense and discretion of the jury, which fixes the award. And, in an action for personal injury, a verdict Will not be set aside for excessive damages unless it *96 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 damages are regulated.” The jury had all of the facts before it, and it was charged with the duty to fix the amount of damages in this case, it being peculiarly within its province to make the award, and, as in this case, where the evidence discloses the substantial injuries suffered by the plaintiff as the result of the collision, we are of the opinion that the amount allowed by the jury is not excessive. The whole record having been carefully examined, we are of the opinion that no substantial error was ■committed by ¡the trial court to justify a reversal of the judgment, and the same is therefore affirmed. By the Court: It is so ordered.