3 Okla. 41 | Okla. | 1895
The opinion of the court was delivered by
On the 11th day of August, 1891, the defendant in error, as plaintiff, filed his complaint in the district court for Logan county to recover damages for pex-sonal injuries x-eceived by him at Guthrie, Oklahoma, while riding fx-onx Purcell, Ixxdian Territory, to Guthrie, ixx a box car ixi one of defendant’s freight trains.
Plaixxtiff claixned in his petitioix that he was a pas-sexxger, and that he was jerked axid thrown from the car ixx question by reason of the xxegligeixce of the defendant’s servants. The defendaxit plead by a gexx-ex-al dexxial, axxd by the allegatioxx that the plaintiff was xiot a passexiger but was a ti-espasser on the train, axid that the injuxúes were x-eceived ixi consequence of his owxx negligence ixx jumping froxn the traixx while it was ixx nxotioxx. To the answer of defexxdaxxt the plaintiff x-eplied, dexxying generally the allegations of the axxswer, and setting up a specific dexxial of the xxxatters set up ixx the axxswer as a defense. The case was tx-ied oxx the 26th and 27th days of October, 1893, axxd x-esulted in a verdict for the plaintiff for the sum of five thousaxxd dollax-s.
It was alleged by the plaintiff that oxx the 3d day of February, 1891, at about 8 o’clock p. M., the defend-axxt, ixi consideration of the sum of oxxe dollar, thexi and there paid to its agent, a brakeman on one of its freight traixxs, by the plaintiff, uxidertook and agx-eed, as a common carrier, to transport axxd coxxvey the plaixxtiff fx-om the town or village of PurcelL to the towxi 'or village of Guthrie, as a passenger, and the plaintiff, being so directed by one of the agents of the
It was further alleged that the plaintiff, while he was such passenger, at the town_ or village of Guthrie, and without negligence or fault on his part, but while he was standing in or near the door of the said freight car preparatory to getting off the same, was, through the unskillfulness. carelessness, negligence and fault of defendant and its agents in causing the said train to greatly slacken its rate of speed and then to suddenly start forward at a much more rapid rate, without allowing him sufficient time to safely get off, thrown from said car and run over by a portion of said train. With their special verdict the jury returned into court special findings, as follows:
1. “Ques. When was the plaintiff injured? Ans. February 8, 1891.”
2. “Q. Was the train upon which plaintiff took passage from Purcell to Guthrie a freight train or a passenger train? A. Freight train.”
3. “ Q. Tf you answer question two, that the train was a freight train, did such freight train have a caboose car attached? A. Yes.”
4. “ Q. In what kind of a car did the plaintiff take passage? A. Boxcar.”
5. “ Q. If, in answer to the last question, you say the plaintiff took passage in a box car, please state if such*46 box car was provided by the company for the accommodation of passengers? A. No.”
6. “Q. Was the train on which the plaintiff took jiassage allowed, by the rules of the company, to carry passengers? A. No.”
7. “Q. Who was the conductor of the train? A. E. P. Anderson.”
8. “Q. If. in answer to the last question, you say that E. P. Anderson was the conductor of the train, you may state whether or not lie was in charg'e of the train? A. Yes.”
9. “Q. Did the conductor know that the plaintiff was on the train? A. We do not know.”
10. “Q. Who was the engineer in charge of the engine that was pulling the train? A. Spunaugle.”
11. “Q. Did the engineer know that the plaintiff was on the train before he was injured? A. No.”
12. “ Q. Who was the fireman of the engine that was pulling-the train? A. J. W. Cooper.”
13. “Q. Did the fireman know that the plaintiff was on the train until after he was injured? A. No.”
14. “Q. Did the plaintiff pay Harry Hill one dollar to ride from Purcell to Guthrie? A. Yes.”
15. “Q. Was Harry Hill abrakeman on the train on which the plaintiff took passage? A. Yes.”
16. “Q. Did Harry Hill, as such brakeman, have any authority to collect the dollar from plaintiff? A. No.”
17. “Q. What did Harry Hill do with the dollar so collected from the plaintiff? A. He ‘devied’ with Reynolds.”
18. ‘ ‘ Q. What was the regular passenger fare from Purcell to Guthrie? A. • One dollar and ninety-four cents.”
19. “Q. Did the plaintiff know that the train on which he took passage was not a passenger train? A. Yes.”
• 20. “Q. Did the plaintiff know that the car in*47 which he took passage was not provided by the company for carrying passengers? A. Yes.”
21. “Q. Did the plaintiff know that the train on which he took passage was not allowed to carry passengers? A. No.”
22. “Q. Did the plaintiff jump from the train while in rapid motion? A. No; he was thrown off.”
23. “Q. Did the plaintiff lean from the door of the box car in which he was riding, so that the stopping of the train threw him out and caused the injury? A. Yes.”
24. £-Q. Would the plaintiff have been injured had he remained back in the car until the train stopped? A. No.”
25. ££.Q. Would the plaintiff have been injured had he taken passage in the caboose attached to the train? A. We do not know.”
26. ££Q. Did the plaintiff have sufficient time at Oklahoma City to leave the box car and go back and get into the caboose attached to the train? A. We do not know. ”
At the time the jury returned their special findings into court, the defendant objected to the reception of the verdict of the jury until special interrogatories numbered 9, 25 and 26, should be answered by the jury, and that the jury be required to answer said findings with more definiteness and certainty, which objection and request were by the court overruled, and duly excepted to by the defendant at the time, and the court received the verdict, to which reception the defendant then and there excepted.
This action of the court constitutes the first assignment of error. It is argued by the defendant in error that the special interrogatories submitted by counsel for plaintiff in error were not properly a part of the record in the case in this court, and were never in fact submitted to the jury by the trial court, and that
The provisions of the code of civil procedure in force at the time and for the purposes of the trial of the cause, 'were those of the Statutes of Oklahoma of 1890, which were adopted from the Statutes of the state of Indiana, and are identical with the provisions of the code of civil procedure of that state. The decisions of the supreme court of the state of Indiana are, therefore, followed, and this court will be governed by them in determining whether error was committed in refusing to submit special interrogatories to the jury requested by the plaintiff in error, and in determining whether said special interrogatories were at any time or in any manner submitted to the jury, and whether the court erred in refusing to require the jury to answer the interrogatories numbered 9, 25 and 26 with a greater degree of certainty, and in overruling the motion of plaintiff in error for said special findings.
It is provided in article .18, entitled “Trial by Jury,” § 28, (4574), Oklahoma Statutes of 1890, that:
“In all actions, the jul-y, unless otherwise directed by the court, may, in their discretion, render a general verdict or sjqecial verdict; but the court shall, at the request of either party, direct them to give a special verdict in writing upon all or any of the issues; and in all cases, when requested by either party, shall instruct them, if they render a general verdict, to find sjoecially upon material questions of fact, to be jDlainly stated in writing. This special finding is to be recorded with the verdict.”
Upon the trial the following instruction was requested by the plaintiff in error, to-wit:
“The court, at the request of the defendant, has submitted to you certain special questions for you to answer, and you are instructed that it is your duty to answer each of said questions fairly as you shall find*49 the truth, to be, under the evidence, without regard to your general verdict.”
This instruction was by the court refused, to which exception was duly taken.
It is the contention of the defendant in error that the party'requesting of the court that the jury shall be instructed to find specially upon material questions of fact, that they shall do so upon condition that *' they render a general verdict. ” This proposition is well founded. The statute is plain. The court cannot be required to instruct the jury that it is their duty to answer special interrogatories upon the evidence “without regard to their general verdict.” The statute plainly requires that the court shall, in all cases, when requested by either party, instruct them, “if they render a general verdict,” to find specially upon material questions of fact. Special interrogatories must be proposed, if at all, in connection with the general verdict, and not “without regard to it.” It would not have been proper for the court to give the instruction in the terms proposed. An instruction to the jury to “’answer each of said questions, without regard to the general verdict,” would have included the instruction to return answers to the special interrogatories, whether they elected to return the general verdict or not. The request was properly refused. (Killian et al. v. Eigenman, 57 Ind. 480; Lake Erie & West. R. R. Co. v. Fix, 88 Ind. 381; Hadley et al. v. Hadley, 82 Ind. 75; Taylor v. Busk, Executor, 91 Ind. 234.)
Notwithstaxiding the fact that the court refused to submit the special interrogatories to the jury, with the instructions pi'oposed, “without regard to their gexxeral verdict,” yet special interrogatories were, in fact, delivered to the jury and answered, special find--ings being made thereon, and returned into court in connection with their general verdict. Wex-e the special interrogatories delivered to the jury and the
The court, having refused to give the interrogatories to the jury as requested, and having yet delivered them to the.jury, it would apirear that the court, having discharged its duty in rejecting their submission to the jury, under an instruction which would have been improper, did, thereupon, submit them to the jury with proper instructions.
It is the duty of the court to give general instructions to the jury, and the sjrecial interrogatories having been tendered with an instruction which the court would not have been justified in giving, we think the presumption would properly arise that they were given to the jury, under the head of general instructions, at the proper time, which it is the duty of the court, to give to the jury. (Frank v. Grimes, 105 Ind. 546; Scott v. Smith, 70 Ind. 298.)
But the fact of their proper submission to the jury does not depend upon this presumption. The record, upon page 130, discloses the fact that
“The said jury, together with said general verdict, returned the interrogatories submitted to the said jury to be answered by them, in connection with their general verdict, and which said interrogatories, together with the answers of the jury thereto, are in words and figures following, to-wit:
And again on page 17 of the record:
“The jury returns into court with their verdict and answers to the special questions of fact submitted to them.”
And again on the same page:
“And the jury return into- court the answer's to the special questions of fact submitted to them, which said" special questions of fact and the answers of the jury thereto are as follows, to-wit:”
And on page 16, that:
“The court, at the request of the defendant, submits to the jury certain special questions of fact for*51 said jury to answer and return to the court with their general verdict, and thereupon the cause is submitted to the jury and they retire to deliberate upon their verdict and the said special questions of fact.”
Which entries were from the journal signed by the judge, and approved over the signature of counsel for both plaintiff and defendant. It thus appears by the record that the court, at the request of one of the parties, sent the interrogatories to the jury, and it makes no diffei-ence that the direction by which they were given to the jury was not in writing. The statute makes no such requirement. (C. C. C. & I. R. W. Co. v. Bowen, Admr., 70 Ind. 478; Stanley v. Southerland, 54 Ind. 339; McAllister v. Mont, 73 Ind. 559; Lawler v. McPleer, 73 Ind. 577; Weistman v. Wiley, 85 Ind. 33.)
It is, however, contended by the defendant in error that the approved statement of the record contains ■‘all of the oral rulings of the court incident to the trial of the cause, motions, instructions and rulings of the court of every kind and character,” and shows that no such request was made to the court prior to the time the court instructed the jury and the argument and submission of the cause to the jury.
In this condition of the record we must find that while the certificate to the case-made expressly states that it contains all of the oral rulings of the court incident to the trial of the cause, and it does not expressly appear in the record when the instruction referred to was given to the jury, that yet the certificate also states that “the case-made contains a true, complete and full transcript of the ■ record of the cause,” among which “true, complete and full” matters, are the statements in the record that “the court, at the request of defendant, submits to the jury special questions of fact for said jury to answer and return with their general verdict.”
We find that the special interrogatories were prop
It is, therefore, proper for this court to consider upon this assignment of error whether the trial court erred in overruling the motion of the plaintiff in error to require the jury to answer with more definiteness and certainty "the special interrogatories numbered nine, twenty-five and twenty-six. Testimony was adduced upon the points to which the special interrogatories were directed, and the answers of the jury to each of them was, “we do not know.” It may have been evasive and equivocal. It would not have been error for the court to have remanded the jury with directions to make specific answers to the special interrogatories referred to. But it would not do, in the presence of testimony not positive or conclusive in its character, to presume that the jury would, upon being rema'nded, have given or have been able to give, with more certainty, a more definite answer to either of these interrogatories. It cannot be said that plaintiff in error was damaged by the refusal of the court to remand the jury, and require it to auswer the questions as required.
It has been repeatedly determined that the failure to answer questions, or the rendition of evasive and equivocal or uncertain answers, not stating the result of the evidence upon the point positively, either in the affirmative or in the negative, simply implies a denial of adequate proof having been produced to the jury during the trial, of the existence of the fact upon which the question or questions has been proposed. The fact upon which the jury has declined to answer has thus not been made out by proof. If, therefore, for example, as to special interrogatory number nine, “Did the conductor know that the plaintiff was on the train?” the answer of the jury was, “We do not
A failure to find upon some fact or issue involved, is equivalent to finding against the party holding the affirmative upon such fact or issue. (Henderson v. Dickey, 76 Ind. 264; Parmenter v. State, 102 Ind. 90; 3 N. E. Rep. 382; Glantz v. City of South Bend, 106 Ind. 305; Railway Co. v. Hart, 119 Ind. 273.)
The plaintiff in error has suffered no loss by the ruling of the court, and we do not think that such ruling of the court is reversible error in its behalf.
SECOND ASSIGNMENT OP ERROR.
The defendant (plaintiff in error) thereupon moved the court to render judgment in favor of the defendant and against the plaintiff upon the answers of the jury to the speciiil questions of fact submitted to the jury by the court, at the request of the defendant, the general verdict to the contrary notwithstanding, for the reason that the said special findings of fact show that the plaintiff is not entitled to recover. Which motion was. upon the 3d day of November, 1893, overruled, to which ruling of the court the defendant at the time excepted.
Included in the special findings of the jury -were the
To the answers, respectively, whether the plaintiff would have been injured had he taken passage in the caboose car attached to the train, and also whether
It is well settled under the laws of the state of Indi- ' ana, under which the case was tried below, as also of the state of Kansas, under the provisions of whose code of civil procedure the case is now being heard, that if, upon finding a general verdict in favor of the plaintiff, the special findings be yet in favor of the defendant, so that it is evident that the jury has misapplied the law to the facts, the general verdict will be set aside and judgment will be given on the findings over the verdict. It will be sufficient in this case if any single controverted fact which it is necessary for the plaintiff to establish in order to recover be found in favor of the defendant, the defendant will be entitled to judgment notwithstanding the general verdict.
It has been, in a variety of forms, declared by the supreme court of Indiana to be the law, that
‘ ‘ The general verdict will be set aside where there is an irreconcilable conflict with the conclusion reached in the general verdict.”
And that,
“The antagonism must be apparent upon the face of the record, beyond possibility of being removed by any evidence legitimately admissible under the issue, before the court can be successfully called upon to direct judgment in favor of the party against whom the general verdict has been rendered.”
And that,
"The special finding must be irreconcilably inconsistent with the general verdict before the latter can be set aside and the former substituted in its place.” (Indianapolis v. Cook, 99 Ind. 10; Woolen v. Wishnier, 70 Ind. 108; Lassiter v. Jackmon, 88. Ind. 118; Smith v. Zent, 59 Ind. 362; Gripton v. Thompson, 32 Kan. 367; Amadon v. Gafe, 24 Ind. 128.)
In support of its contention it is argued by plaintiff
1. The jury have found as facts that the fare paid by the defendant in error was not the regular passenger fare from Purcell to Guthrie, one dollar and ninety-four cents, but one dollar, and that this dollar was paid to Harry Hill, a brakeman on the train, who had no authority to collect it from the plaintiff. If the brakeman had no authority to collect the fare from the plaintiff, he had no authority to bind the company or make any contract on its behalf. There are certain facts in railroad passenger and freight traffic of which the public is required to take notice. One is that a jxassenger train is for the purpose of carrying passengers; another is that a freight train is for the purpose of carrying freight. One proposing to be canned as a passenger upon a freight train, must advise himself upon what terms the company will contract to carry him as a passenger, and with whom he may make the contract. The courts will require that the traveling public shall take notice that freight cars are not intended for the carriage of passengers, that when passengei's are accepted upon freight trains, the caboose attached to the train is the car in which passengers must place themselves unless otherwise directed by a person having charge of the train; that the railroad company places a conductor in charge of each train, who has charge of its management in all
2. But it is contended by plaintiff in error that even if the plaintiff was a passenger, he was guilty of contributory negligence in riding in the box car. The defendant in error entered the box car and took his position there of his own choice. In order to entitle himself to the high degree of care which the carrier of passengers must exercise, the passenger must go into, and remain in, the car which is provided for passengers. It has been repeatedly held, that if the passenger takes any other position upon the train, of his own choice, either on the engine, on the cow-catcher, tender, baggage car, platform, or other car, he is guilty of such contributory negligence as, if he should be injured, would deprive him of the right to recover, even though the negligence itself might not have been contributed .to by the iujury. It has, in some cases, been held that if another place on the train, aside from the car provided for passengers, and which is assumed to increase the danger of travel by rail, has been taken by the passenger by the authority or consent of the conductor or other agent in charge of the vehicle or train, that the carrier may be liable. This doctrine has been upheld by some courts, and denied by others. But it does not apply in cases where the passenger assumes a dangerous and improper place at the instance, and with the consent of, one of the
(3) It is, in the third place, contended by the plaintiff in error under the present assignment of error, that the defendant in error was guilty of negligence in leaning out of the open door of the car, and thereby contributed to the injury for which he here
We, therefore, find upon the points enumerated that the defendant in error was a trespasser upon the train in question, and entitled to no duty from the defendant except not to wilfully or wantonly injure him, which is not charged in the petition, and that he was guilty of contributory negligence in boarding the box car, and in placing himself in a position of special danger at the car door while the train was in motion, that he is not entitled to recover, and that the trial court should have, upon the motion of plaintiff in error, set aside the general verdict and rendered judgment in favor of the defendant below.
It is unnecessary to consider the other assignments of error.
It is therefoi-e ordered that the case be reversed and-remanded with instructions to enter judgment for the defendant in the court below.
