104 Ark. 327 | Ark. | 1912
Lead Opinion
(after stating the facts.) 1. The statutes of Oklahoma and Arkansas in regard to recovery for death by wrongful act are so substantially similar that the courts of this State should not refuse to allow an action to be maintained by an administrator appointed in this State, or by an administrator appointed in the State of Oklahoma where the injury occurred, to maintain a suit for the recovery of damages for a death occurring in the State of Oklahoma. Sections 5943-5945, Compiled Laws of Oklahoma; Sections 6285, 6289 and 6290, Kirby’s Digest.
The laws of Oklahoma concerning the recovery of damages for death by wrongful act are in harmony with our laws and policy on that subject. Dennick v. Railway Co., 103 U. S. 11; Minor, Conflict of Laws, p. 492.
In Stewart v. Baltimore & O. Ry. Co., 168 U. S. 445, it is held that, “when the statutes of the State in which the cause of action arose are not in substance inconsistent with the statutes or public policy of the State in which the cause of action is sought to be enforced, the suit can be maintained in the latter State.” See also Texas & Pac. Ry. Co. v. Cox, 145 U. S. 594.
This is a transitory action, and the appellee, as administratrix, had the right to maintain it here. Eureka Springs Ry. Co. v. Timmons, 51 Ark. 459; St. Louis, I. M. & S. Ry. Co. v. Brown, 67 Ark. 295. See also St. Louis, I. M. & S. Ry. Co. v. Hesterly, 98 Ark. 240.
The presumption is in favor of the right to sue, and the burden rests upon the party objecting to show that the suit was not brought by the proper party. Minor, Conflict of Laws, p. 492.
The appellant, in its demurrer to the complaint, sets up that Lemoyne, at the time of his death, was a citizen and resident of the State of Oklahoma, and alleges that after his death his “widow and children continued to be citizens and residents of said State, and that plaintiff obtained letters of administration in Oklahoma.” But the demurrer and the motion to dismiss also allege that at the time of the obtaining of the letters of administration the widow and children were citizens and residents of Oklahoma.
There is no showing in this record that the letters of administration granted Mrs. Lemoyne in Oklahoma have ever been revoked.
This court held, in Warren & O. V. Ry. Co. v. Waldrop, 93 Ark. 127, that the removal of an administrator appointed in this State to another State did not ipso facto revoke the letters of administration.
It does not appear whether appellee sued in her capacity as administratrix in the State of Oklahoma, or whether she sued in the capacity of ancillary administratrix. The suit was for the purpose of recovering such amount as might be due the widow and next of kin and the estate under the provisions of sections 5943-5945 of the Compiled Laws of Oklahoma. The right of recovery could be maintained by appellee as the regular representative of the estate in the circuit court of Sebastian County, because in a transitory action of this kind such court had jurisdiction both of the subject-matter and of the parties. The appellant was an Arkansas corporation, and was domiciled in Sebastian County, and the situs for the purpose of recovery of the amount of the liability to the estate in this suit was in that county, or any other county where service, under the law, could be had upon the appellant. Dennick v. Railway Co., 103 U. S. 11.
The right to the distribution of the fund could in nowise affect appellant, and, the law for recovery in such cases being substantially the same in the States where the injury occurred and where the suit is brought, the doctrine of comity can be successfully invoked by the appellee.
2. The concession of counsel for the appellee and the instructions of the court eliminated from the consideration of the jury all grounds of alleged negligence except that contained in the third paragraph of the complaint, which was in substance that, while Lemoyne was between the cars attempting to uncouple them, which in the discharge of his duty he was compelled to do, and while the train was stopped, the engineer, knowing that decedent was between the ends of the cars, without any signal from decedent to so do, negligently and carelessly started said engine forward and ran over him, causing his injury and death. This issue as to appellant’s negligence was submitted to the jury under the following instruction: “If you believe from the evidence that plaintiff's intestate, while in the exercise of ordinary care for his own safety, was killed through the negligence of the defendant’s said engineer in moving said cars while plaintiff’s intestate was between them in the discharge of his duty, then your verdict should be for the plaintiff.”
Appellant contends that there is no evidence to sustain the verdict on this issue, and that the court should have directed a peremptory verdict in its favor. The testimony bearing upon this issue of alleged negligence of appellant is set out in detail in the statement. The testimony of Grace Mc-Keehan shows that Lemoyne, while walking beside the train before the same stopped, and before he went in between the cars, made a motion with his hands; that after making that motion the train stopped; and that after the train stopped he went in between the cars, and the witness thought because of that fact that he was trying to uncouple the cars. She didn’t know whether he was trying to uncouple them, or whether he was merely inspecting the coupler. His hands were in motion where the two cars met together. While in this situation, the train pressed him down.
The testimony of the witness Dollie Jones shows that she saw Lemoyne walking on the ground as the train was going along, and that when it stopped he went in between the two cars and was attempting to uncouple them when the train moved towards the north and ran over him. This witness did not see Lemoyne give any signal before the train stopped and before he went in between the ears; but she states that he might have given some sort of a signal, but that if he did she didn’t notice it. She did not know anything about railroad signals.
The jury were warranted in finding from the above testimony that the train was stopped after Lemoyne had made a motion by shaking his hand, and that after the train was stopped he went in between the cars to uncouple the same, and while in this position the engineer moved the train forward and ran over him. The testimony of these witnesses is positive that the train stopped, and that a short time intervened after it came to a stop before it was started, during which time Lemoyne was between the ears attempting to uncouple the same, and that the cars were started while he was in this position. The testimony was sufficient to warrant the conclusion that the engineer stopped his train after the signal was given by Lemoyne, indicating that the engineer saw him give the signal and stopped the train in obedience to such signal, and that he started the cars while Lemoyne was in this position and ran the same over him. True, the testimony of witness Taylor, the engineer, who was also introduced on behalf of the appellee, showed that Lemoyne did not go in between the cars while the train was stopped to uncouple the same. His testimony, on the contrary, shows that he was moving the cars in obedience to signals given by Lemoyne, and that while these cars were in motion Lemoyne ran between them and was run over.
But the testimony of the witness Taylor was in direct conflict with the other witnesses for the appellee as to the cars coming to a stop before Lemoyne went in between them. It was the province of the jury to consider the testimony of these witnesses and to reconcile the conflicts as far as possible; and if they found (which they evidently did) that the testimony was conflicting and contradictory, it was their province to believe and accept the testimony which they believed reflected the truth of the matter under investigation. The credibility of the witnesses introduced on behalf of the appellee, as well as those on behalf of appellant, was for the jury.
The testimony of witness Taylor tended to show that there was no negligence whatever, but the testimony of the other witnesses for appellee tended to show that there was negligence. The appellee was not bound by the testimony of witness Taylor, although introduced by her. It was for the jury at last to say what weight they would give to his testimony. “The primitive notion,” says Mr. Wigmore, “that a party is morally bound by the statements of his witnesses no longer finds defenders, although its disappearance is by no means very far in the past.” 2 Wigmore, Evidence, § 897.
In Brown v. Bellows, 4 Pick. (21 Mass.) 179, on page 194, it is said: “Although it is a general rule that a party is not to be allowed to discredit his own witness, yet that must be understood to mean that the witness is not directly to be impeached on account of his character for truth; but the rule is by no means to extend so far as that a party may not call a witness to prove a fact which a witness previously called by him has denied. A party is not obliged to receive, as unimpeached truth, everything which a witness called by him may swear to. If his witness has been false or mistaken in his testimony, he may prove the truth by others.”
In Whitaker v. Salisbury, 15 Pick. 534, on page 545, the Supreme Court of Massachusetts says: “It would be evidently a rule that would operate with great injustice that a party calling a witness should be bound by the fact which was sworn to. No one would contend for a rule so inexpedient.”
Tindall, Ch. J., in Bradley v. Recardo, 8 Bing. 58, says: “The object of all the laws of evidence is to bring the whole truth before the jury.”
Mr. Elliott, in his work on Evidence, says: “Although a party can not discredit his own witness as to his general character for truth and veracity by a direct assault for that purpose, he may give evidence to contradict any important and material fact to which the witness has testified. The party may show what the truth is, even if the evidence adduced in so doing does tend to contradict a witness called by him.” See 2 Elliott on Evidence, § 985.
Under this rule, it was within the province of the jury to accept and believe the'testimony of Grace McKeehan and Dollie Jones, and to accept all or such parts of the testimony of witness Taylor as they believed to be true and reject that which they believed to be false. It can not be said as a matter of law that there was no evidence to sustain the verdict. It was a question for the jury.
3. On the issue of the decedent’s contributory negligence, the court instructed the jury that “if the evidence shows that, while the engineer was moving ears according to signals given him by deceased, the deceased went in between the moving cars and was by such cars knocked down and killed, the jury should find for the defendant.”
The appellant contends that, inasmuch as plaintiff “withdrew her claim as to defective couplers,” and inasmuch as the court instructed the jury that the testimony was not sufficient to authorize plaintiff to recover upon the alleged defects of the coupler, therefore Lemoyne was guilty of contributory negligence in going between the cars to uncouple same. But it does not follow that, because plaintiff withdrew her claim as to defective couplers, and the court instructed the jury that the plaintiff was not authorized to recover upon the alleged defects of the couplers, the decedent Lemoyne was negligent in going between the cars in an attempt to uncouple the same. True, there was testimony tending to show that at the time of the injury the couplers were in good condition. But the testimony, even on behalf of the appellant, also tended to show that sometimes, when all the slack was not gotten out, it took more strength to open the couplers; and other testimony, on behalf of the appellee, tended to show that it required more force to lift the levers at some times than at others. “Sometimes requires considerably more strength— two or three lifts. You have to have slack, or you can’t uncouple them. If the lift-pin is tight, could not do so” — was the language of one of the witnesses.
It was agreed by the appellant that the cars were still uncoupled after the accident. This was the case, although the engineer testified that the “deceased had his foot in the stirrup of the car with his hand hold of the lift-pin lever attempting to cut off one car, which was the third car from the engine.”
Although the plaintiff may have confessed that she could not recover for negligence on account of defective couplers, it was still a question for the jury to say as to whether or not the decedent, under all the circumstances, acted with ordinary prudence in going in between the cars to uncouple the same.
The testimony of witness Taylor tended to show that Lemoyne had made the effort standing on the stirrup to uncouple the cars with the lift-pin lever and had not been successful. The jury may have concluded that he had the cars stopped and went in between,them because he was not able to uncouple them by the ordinary method provided. There was testimony from which the jury could have found that where the lever would not lift the coupling pin when applied in the usual manner of doing it, there was no way to uncouple the cars “except to go in and catch hold of the pin and lift it.” There was testimony tending to show that when a coupling pin became a little rusty or dirty by exposure to the weather it required a great deal of force to lift it, and that when that was the case sometimes the cars could not be uncoupled at all when moving.
Under all the evidence, we are of the opinion that it was a question of fact for the jury as to whether Lemoyne was guilty of negligence in attempting to uncouple the cars in the manner indicated. The court did not err therefore in submitting the question for the determination of the jury, and the issue was properly submitted.
In view of what we have said, the court did not err in refusing appellant’s prayer for instruction numbered “7.” Only the latter part of this prayer was correct, and the court covered that part by instruction No. 8 given at appellant’s instance.
The court also, by instructions given, covered prayer numbered “10,” which was refused. Moreover, prayer No. 10 was erroneous because it was tantamount to a peremptory instruction for a verdict in favor of the appellant on the issue of contributory negligence, which we have seen was not an issue of law for the court, but one of fact for the jury.
There was no error in giving appellee’s prayer No. 5. Appellant urges here that this instruction was erroneous because it omitted the qualifying clause, “unless the evidence on behalf of plaintiff shows that sneh intestate was not exercising such care for his own safety.”
The court having given appellant’s prayer No. 8, there was no error in giving the prayer of appellee numbered 5. The instructions, taken together, correctly declared the law. Moreover, the appellant did hot make any specific objection in the court below to the instruction. The instruction was not inherently defective, and the modification which appellant now claims should have been made would doubtless have been added if appellant had called the attention of the trial court to it by a specific request or by a specific objection. Having contented itself with a general objection to the prayer in the court below, it can not have reversal here for the specific objection it now urges. St. Louis, I. M. & S. Ry. Co. v. Stacks, 97 Ark. 409; Aluminum Co. v. Ramsey, 89 Ark. 522; St. Louis, I. M. & S. Ry. Co. v. Fambro, 88 Ark. 16; St. Louis, I. M. & S. Ry. Co. v. Sparks, 81 Ark. 187.
4. We do not find that there was any reversible error in the manner of conducting the examination of witnesses permitted by the trial court. Appellant urges that reversible error was committed in failing to sustain defendant’s objection to many leading questions. The particular questions and answers objected to are not abstracted by the appellant, and reference is made, to them only in a general way as contained in the motion for a new trial, and as appearing at certain pages in the transcript. They are not set out in the abstract nor in the brief, and the court will not explore the record to find them.
The record upon the whole is free from error prejudicial to the rights of appellant, and the judgment must- therefore be affirmed.
Rehearing
ON REHEARING.'
First: Appellant contends, for the first time on 'rehearing, that appellees’ cause of action for the benefit of the estate was brought under the employers’ liability act of Congress, approved April 22, 1908, and that under that act no right of action survives for the benefit of the estate. This contention can not be sustained, for the reasons: (1) That rule. 3 of this court prohibits a consideration of the matter, inasmuch as no reference was made to such contention in the abstract of the case when it was first presented for our consideration. There is no reference whatever to the present contention in appellant’s abstract or brief on the first hearing. (2) The cause of action for which this suit was brought arose on the 23d day of May, 1910. The employers’ liability act was amended on April 5, 1910, so as to provide for a survivor of causes of action for pain and suffering growing out of a personal injury in favor of the personal representative, and that the action may be brought in “ the district in which the defendant shall be doing business at the time of the commencement of such action.” This amendment also provides that the jurisdiction of the courts of the United States shall be concurrent with that of the courts of the several States, and that no case arising under the act and brought in any State court of competent jurisdiction shall be removed to a court of the United States. Therefore, the cause of action accrued to the appellee after this amendment and can be maintained in the State court. 36 United States Stat. at Large, 291 (3 ed). The issue was finally presented to the jury on the question of the negligence of the engineer, based on the laws of Oklahoma.
Second: We are still of the opinion that the issue as to whether or not appellant’s negligence produced the injury complained of was one for the jury. The testimony is set out at length in the statement, and is discussed in the original opinion.
The motion for a rehearing is therefore overruled.
