*1 497 plaintiff’s only and then the could have of dam been element quested ages evi which there was to instruct as to or loss of monetary proper plaintiff’s value damages. dence to actual measure of fig earnings. Floyd, See deceased’s St. Louis-S. F. R. was the Co. v. earnings (after gross proven supra, for his and ure authorities therein cited. (in $2,028.90 withholding taxes) However, attempt as she no made age re cluding old deducted for direction, this $21.05 and we think that period benefits) jury’s 9-month for a tirement excessive verdict was due to its This immediately preceding his death. consequent failure take into consid- per average of 1/3 $225.43 eration that element in her measure years, rate, de this 23.81 damages, For of months. we feel she should earnings total have had would ceased $21,774.89 jury’s remit award, of funeral bill $64,410.81, which with participate trial, a new she added, total make a would properly prove $957.50 can damages. her She seen, is which, be $65,368.31, will would opportunity then have further amount considerably than less monetary establish the value of In the verdict. awarded proper losses suffered reason of her necessary living and natural course of husband’s death in addition to con- spend events, would have Mr. Sutton wages. tributions to her from As to the needs, so personal for his this some of jury’s ignorance effect of proper full amount this be said it cannot rule or measure damages, 2nd see contributed have been ever would paragraph syllabus in Public Serv- her needs and/or him the ice Co. Hawkins, v. 194 149 her measure of true And the wants. Therefore, 783. conformity with wages couid the basis on loss precedent followed in Coker v. would contribution than such more no Moose, 180 68 P. 2d Pac. English Southern v. been. have cases, other judgment affirmed, is Pitman, 407, 45 P. Co., 13 Utah on condition that within file 295, 117 Merriman, N.H. 80 Adm’r, v. days ten judgment a remittitur 589, and annotations A.L.R. Atl. $21,774.89, the amount of the excess 1299, Note Mc following; 25 C.J.S. $48,225.11. judg- over Otherwise, pp. Ed.) Damages (1935 on Cormick ment of the trial court will be re- connection, see In this 342. versed and remanded for a trial. new Co. M., T.& K. discussions HALLEY, V.C.J., C.J., JOHNSON, St. P. West, DAVISON, JJ., and WELCH and Floyd, 146 Okla. R. Co. F. Louis-S. O’NEAL, JJ., cur. CORN and concur Plaintiff 1431. 250, A.L.R. affirmance, remit- but dissent as to introduced have should titur. measure her element important brief, de In their damages, didn’t. but arbitrary es make counsel fendants’ KANSAS, Mr. Sut OKLAHOMA & GULF RY. per month timate $60 in necessary personal CO. v. McANALLY. own ton’s expenses, cidental No. 34870. Dec. 1952. dam made, deduction Rehearing May 19, Denied $48,225.11, or than more ages Sixty verdict. than $21,774.89 less 2d modest to us per month seems dollars pres item in view for this deduction per living Buster Sutton’s If costs. ent this, than expenses were less sonal evi introduced they were tending what show dence 788), (25 C.J.S. cents in dollars

hand on railway right defendant’s way. parties The will be referred to as ap- and defendant peared in the trial court. Upon the return of the verdict in plaintiff’s favor and from an order over- ruling defendant’s motion for newa trial, judgment entered, from appeal questions is taken. posed by appeal (1) any proof primary negligence under charges various so, plaintiff’s petition and, in if tained did one or more of them result injury complained accident and the of? appeal presents (2) whether sub- stantial error in court’s refusal give adequate instructions Employers’ Liability Act, and given ade- instructions quately in the case. submitted the issues allegations petition may of the charging the de- be summarized as negligent failing (a) fendant was in ordinary exercise care reasonable place furnishing in in a safe provide failing work; (b) which to employees number of fellow a sufficient perform the time and work resulting plain- place of the accident failing injury; (c) tiff’s supervise doing the the work and in dangerous manner; (d) work in doing work a time when ground snow and was covered with sleet. entire From an examination following record, facts we find that by competent evidence: are established Chas. P. Gotwals and James D. Gib- son, Muskogee, Anglin, & Stevenson employed by Plaintiff was defendant Huser, Holdenville, error. for perform in 1945 as a hand section railway right work track and on its Green, Ada, Roy Lawrence H. way. morning February On the Paul, Durant, defendant error. defendant’s section foreman O’NEAL, J. an action plaintiff, This was structed and two additional brought by McAnally against employees defendant, D. Charles cer- load Kansas, Railway repair equipment Oklahoma & Gulf tain tools and on a Company per- to recover Allen, motor car then located at Okla- injuries growing receiving sonal foreman, out of and after ad- homa. employment railway depot agent course of his as a section vice from might location of ground trains that generally in that terri- operated tory. over the track where du- might require ties go, rejoined him to lapse period After of a time the three and ran the motor two passed; whereupon, trains the crew car from Boggy Allen to Curve set- replaced push-car the motor off, a distance of approximately six main proceeded track and on an in- miles south of Allen. When arrived spection trip point approximately to a Boggy Curve, plaintiff, and another six They miles south of Curve. employee, light lifted the end of the returned to Allen at noon and motor car across the main rails to the reported to a doctor who dressed his rails, and the foreman and an *3 injury. head Plaintiff returned to his employee pushed the end of the other usual days work within a few "and car removing around. This method of continuously up July worked until the motor car from the main line track During July, the month of onto the set-off rails was the usual and the roadmaster of the com- defendant way employed, normal practice, pany plaintiff observed a time when physical as well as the of conditions by he spasm, fit, was attacked a or Boggy Curve, set-off at is not plaintiff the roadmaster directed dispute. As the motor car was lifted report physician to defendant’s off of the process main rails and in the Muskogee physical for a examination. setting of down, plaintiff’s slipped foot physician opin- Defendant’s of the was fell, causing and he injury to the plaintiff subject epilep- ion that back of his head. There was snow malady tic seizures and that covering Boggy frozen sleet Curve peri- evidenced fits and coma at set-off, as general, well as area in odical physi- times. The defendant’s resulted, and it is claimed the accident railway company cian advised the that part, this condition and in con- plaintiff permitted should not be to re- junction specific with the other acts of sume physi- his railroad work until his negligence heretofore referred to. improvement. cal condition showed Thereafter, plaintiff submitted himself Considerable stress is laid physicians to two of his own selection circumstances that the foreman told the certify- who furnished him statements hurry loading men at Allen to ing they opinion were of the working tools the motor as car plaintiff was able to his former resume Boggy Curve,

he wanted to reach employment. accompanied by Plaintiff, there was a set-off removal representative union, of his labor car, the motor before arrival of a request upon made a defendant proceeding train north reached they posi- reinstate him in former his point; reached tion. Plaintiff furnished defendant with again urged Curve, the foreman his physicians’ certificates, and also get crew of three men to advised he felt as as a motor car off the main track previous able to work as he had to the probably would arrive train except during periods accident, employees One of stated that time. time when he was “knocked out” always urging their foreman was them he what called “fits.” Defendant hurry. whereupon him, clined to reinstate suggests ele- Plaintiff further as an plaintiff did construction work ment the foreman building Armory of an town of having engaged a discretion as to time and Allen, in other labor and was place performed where work was to be employment. The in reference gone fainting spells, men should not have plaintiff whether had morning inspection trip on the of the complained fits, prior to accident or occurred, day the accident as it was sharp of, conflict. wit- was in Several apparent that snow and sleet then had not ob- testified that nesses “spells” or no served that had such one for the court law prior to the date the accident. where but one inference can reason weight greater is to the the evidence ably and, evidence; be drawn from the contrary, testi- fellow pri where the mary negligence to show fails prior spells fied both had duty breach subsequent accident, to his and that part judg defendant, on the ment Tulsa v. then spells progressive were not more City be must defendant.” subsequent complained of. Harman, physicians evidence of three Atchison, Hanson v. T. & S.F. physically able Stano Klaus, lind Oil & Gas Co. sharp con- to resume work was 409, 144 P. 2d 955. flict. From a careful review evidence, entire we constrained plaintiff’s allegation that defend- hold that not sustain evidence does place within ant failed to a safe furnish allegations relied by proof. supported which to work is not upon, all the evidence respect It was not shown in what proper deductions therefrom are improperly rails were sufficient to show causal connection structed, state of or were in unsafe alleged wrong between the and the in- allegation repair, nor can jury. negligently sustained defendant em- fellow to furnish sufficient failed Casualty Reciprocal Exchange In *4 from ployees motor car to remove the Sutfin, 567, 434, 196 Okla. 166 P. 2d we rails. His main line the onto the set-off held: only testimony four own disclosed work, and could be used in this men competent “Where is performed us- in the the work question negligence intro- customary duced from manner. ual and reasonable men might conclusions, draw different is it upon plaintiff’s placed is Much stress jury, one for the cumstances like cir- and under to crew was ordered the statement question proximate the getting car loaded jury.” motor cause is one for the the Allen, and off of the tracks ux., In Leslie v. Hammer et proof discloses Curve. 153 P. 2d we said: in the us- motor car removed the crew usually re- manner, it and that ual general proximate “As a rule the mo- quired move fifteen to seconds question of an cause and is a fact upon the tracks car off of the main tor only becomes law argument is An extended rails. together the evidence with all day a cold presented may inferences which duced therefrom is a causal ground, insufficient to show with snow and sleet connection between the al- not foreman the defendant’s leged wrong injury.” and the required do work at crew to by the and manner disclosed the time Earl, Adm’x, In the case of Okla- record. City-Ada-Atoka Ry. homa we held: general in 39 C.J. stated rule as 391, is as follows: is “It is well settled where there tending reasonably to show no evidence that general a railroad is that rule negli- guilty of the defendant company its not to is liable to gence, for court it is error the trial resulting con- injuries from climatic jury.” issue to submit ice, but and ditions, such as snow yard workmen constant- limits where its within McMichael, 200 et ux. In Sanders numbers considerable court 2d degree engaged, ly exercise it must the risk to

stated: with commensurate of care prevent jury employe’s accumulation of snow or ice case quantity, form, negligence in such to be a ployees working propor- tributory tion to the amount location as shall be in safety negligence em- menace to the its attrib- employe, therein.” utable to such means where the causal attribut- is supported by The rule follow- partly partly able to the carrier ing cases: Cincinnati N. O. & T. P. employe, recovery cannot be had Ry. Ky. 295, Delaney, 204 Co. v. damages, only for full ‘but for a di- bearing S. W. Wichita Falls & S. Co. v. minished sum the same rela- damages negli- tion to the full (Tex. App.) 35 2d Burton Civ. S. W. gence attributable to the carrier bears 476, 477, Missouri Pacific Railroad to both; attributable to 429-30, Aeby, Co. v. 275 U. S. purpose being to re- exclude from L. Ed covery proportional part dam- ages corresponding employe’s briefly next We consider defendant’s ” negligence.’ contribution total objections exceptions to the in- given by exceptions structions the trial court. Defendant saved petition alleges and its 11, 12, court’s instructions Nos. 13 and employee engaged McAnally, They challenged principally were commerce, interstate ac- the assertion that un- were tion is covered the Federal Em- duly repetitious long, involved and ployers’ Liability Act, 45 U.S.C.A. by setting §51 character forth al- seq. legations et as enumerated petition. 53 of fol- Section said Act reads as lows: case, principal As we view the their vice was that instance did the brought “In all hereafter actions applicable court advise against any common carrier such damages diminution of the Fed- railroad under or the virtue of Employers’ Liability eral Act. It is the provisions chapter of this duty every case personal injuries cover injuries employee, applicable or where the is- instructions death, resulted have the in his the fact that sup- pleadings sues found employee may guilty have been ported by the evidence. contributory shall bar *5 damages recovery, judgment a diminished but the shall be The is reversed. jury proportion the WELCH, CORN, GIBSON, and DAVI- to the amount of attributable SON, HALLEY, V.C.J., JJ., concur. dis- employees.” to such sents. wholly give The trial court failed to HALLEY, (dissenting). V.C.J. advising jury an instruction the that majority opinion misconstrues the facts if found the issues in favor of the ap- case and not does plain- plaintiff, and found that the ply ac- to the facts the law guilty contributory negli- tiff was clearly tually The evidence existed. gence, damages the dimin- Boggy Curve the shows jury proportion ished the and was was a makeshift affair amount of the attributable regular used normal set-off the plaintiff. to was of the set-off The location railroads. Ry. City, In Kansas M. & O. Co. et al. easy the slant, made on a it Costa, 892, this 69 Okla. 170 P. taking a mo- hands fall section to court held: addition, the tracks. In car from the tor track and the showed Employ- requirement of Federal ground covered around the set-off were Liability April 22, 1908, ers’ Act c. time the with snow and ice at the Comp. (U.S. 65 1916 secs. Stat. St. plaintiff injured; further the 8657-8665), was that diminution of brought provided out foreman fendant railroad

fact was the than the rule get Employers caused men to the car for under the the to Lia- bility line, given off main Act. The the when there was instruction told the jury urgency plaintiff’s negligence fact no the matter if about the time, any way injuries the and he knew it. contributed to his recover, he could not while the instruc- photograph filed case-made sought tion that would as the defendants’ exhibit shows permitted jury to allow normal set-off was not safe under covery for the if it found that conditions, especially would it be contributed in- precarious place for the hands section juries. given, Under the instruction ice work when snow and were on jury had find there was no ground. tributory negligence part in order for him to recover I the law is in an think settled anything, jury the verdict of the injuries action for to servants of a contributory negligence. there was question of whether railroad any record was devoid of evidence of juries negli- proximately resulted from contributory negligence. The defendant regard- gence company of the railroad complain cannot about the failure of the ing is for the its tracks and roadbeds requested instruction if jury evidence. where there is sufficient given the instruction more favor- Charleston & W. O. McClain v. able to the defendant than the one re- 280; 4 S.E. 191 S.C. 2d quested. Frost, Teeters v. ,(e) (2). say I there C.J.S. §533 Anderson v. Rucker jury evidence for was sufficient Bros., 107 Wash. A.L.R. working determine condi- 544. provided by tions the defendant were testimony duly safe circumstances There li- clearly physician at bar. It was a case case censed ep- could dif- about which reasonable men received caused traumatic question testimony fer. There is but ilepsy, was medical hurrying men contrary. clearly foreman was It was injured, jury’s time the and the function to determine which doc- approach of the evidence shows that tor it believed. ne- train was not so imminent as to respectfully I dissent. hurry. my opinion, In cessitate was a of fact for the pass fore- on as to whether not the TRUSTEES, JAMES v. UNKNOWN giving guilty man AND SUCCESSORS ASSIGNS OF hurry-up orders he did under THREE-IN-ONE OIL & conditions which then existed. See GAS. CO. et al. C.J.C., Servant, §280; Master and Wil- Ass’n of liams v. Terminal Railroad May No. 35335. (Mo. App.) 20 2d St. Louis S.W. Rehearing May 26, Denied *6 Railway Co., 334 Mitchell v. Wabash 257 P. 2d 520. Mo. 2d 286. S.W. opinion majority states that failing committed error trial court pro- applicable to advise the vision for the diminution Liability Employers give such Act. The trial court did instruction, instruc- but did tion that was more favorable