125 P. 1125 | Okla. | 1912
Mrs. F. P. Fonville, hereinafter called plaintiff, brought an action in the district court of Oklahoma county, prior to statehood, against the Metropolitan Railway Company, hereinafter called defendant, for damages for personal injuries. She recovered a judgment, and defendant appealed to the Supreme Court of Oklahoma Territory. There the judgment of the district court was reversed, and the cause remanded. The opinion of the Supreme Court of the territory in the case is reported in
The case was again tried, and plaintiff again recovered judgment. From that judgment this appeal was taken. After the judgment plaintiff died, and the case has been revived here in the name of her administrator.
The trial court instructed the jury that nine or more concurring could return a verdict, and the verdict was in fact returned by eleven men. This instruction was excepted to at the time, and is assigned as error.
This case was pending at the time of the admission of the state into the Union, and, under the provisions of section 1 of the Schedule to the state Constitution, should have been tried according to the law and procedure in force prior to statehood. *78 Freeman v. Eldridge,
It has been decided a number of times that a unanimous verdict is required in cases pending at the time of the admission of the state into the Union. Pacific Mutual LifeInsurance Co. v. Adams,
It is contended by the defendant that the decision of the Supreme Court of Oklahoma Territory in this case settled the law of the case for all future trials, and that under that decision the plaintiff is not entitled to recover. It is also contended that judgment should be here rendered, directing the district court to dismiss the case.
It is well settled by both reason and authority that a decision of an appellate court upon questions of law must control the case, as to points decided, at all subsequent stages. And a decision of the Supreme Court of the territory of Oklahoma is the law of the case at subsequent stages, even after statehood. Oklahoma City Electric Gas Power Co. v.Baumhoff,
It was held in the decision of the case on the former appeal that under the evidence it was the duty of the trial court to direct a verdict for the defendant. Applying the rule of the law to the case, if the evidence at the trial from which this appeal is taken was the same, or substantially the same, as the evidence at the first trial, the judgment upon this appeal should direct that the case be dismissed, unless it should appear from the record that other evidence exists which might, upon another trial, change the facts proven. It is therefore necessary to determine whether the evidence was substantially the same upon both trials.
Plaintiff was struck by one of the defendant's street cars as she was driving a team and hack across its Broadway track at Main and Broadway, in Oklahoma City. At the first trial no proof was offered by the plaintiff as to the speed of the car. Upon the last trial the testimony of at least one witness, who was one of two passengers on the car when the plaintiff was injured, was that the car was running about fifteen miles an hour. After the case was reversed and remanded by the Supreme Court of Oklahoma Territory, plaintiff amended her complaint and alleged that the car which caused the injury was not properly equipped and that some of the machinery at the power house of the defendant was not in repair. There are other minor differences in the issues and evidence at the two trials, and, considering these differences, it is proper to remand this case for a new trial, rather than dismiss it. This opinion, however, is not to be construed as passing on the value of the evidence at the last trial, but only that it is substantially different from the evidence on the former trial.
In view of the fact that the case may be tried again, it is proper to notice the assignment that the court erred in giving the following instruction: *80
"The duty of the plaintiff to use ordinary and reasonable care in crossing a street railroad track is the same degree and kind as the duty of the defendant to use ordinary and reasonable care in the operation of its cars; and even though the defendant failed to use such care, and the accident would not have happened, had such care been used by it, still the plaintiff cannot recover if she herself failed to use ordinary and reasonable care, and but for her failure the accident would not have happened, unless it further appears from the evidence that, notwithstanding such negligence on the part of the plaintiff, the accident would not have occurred, had the defendant exercised reasonable care to avoid the injury after it discovered, or by the exercise of reasonable care might havediscovered, that an accident was imminent." (Italics ours).
This instruction made the defendant liable for failure to exercise reasonable care to avoid the injury, though plaintiff was guilty of contributory negligence in placing herself in a position of danger, whether she was discovered or not, if by the exercise of reasonable care she might have been discovered. This was error. The exact point was decided in the case ofOklahoma City Ry. Co. v. Barkett,
It is not necessary to consider the other questions assigned as error, for the reason that they are not likely to arise on another trial.
The case should be reversed and remanded for a new trial.
By the Court: It is so ordered.