195 P. 139 | Okla. | 1920
Lead Opinion
Defendant contends that the plaintiff was either a bare licensee or trespasser; that he was of sufficient age to be charged, as a matter of law, with having assumed the risk incident to the dangerous position he occupied on the pilot step of the engine at the time the watchman moved the engine, and that, being a trespasser or licensee, it owed him no duty except that it should not wantonly or willfully injure him, and should exercise ordinary care not to injure him after discovering him in a perilous position. Defendant contends that the watchman's conduct in permitting plaintiff to assist him and occupy the dangerous place on the pilot step of the engine was wholly unauthorized, beyond the scope of his authority, and consequently the proximate cause of plaintiff's injury was either the unauthorized conduct of the watchman in permitting the boy to assist him, or the act of the plaintiff in falling off the engine; that it is admitted by plaintiff that the injury was not occasioned by any defect in the road-bed or machinery or method of operating the engine. Defendant cites a number of cases, notably Daugherty v. Chicago, M. St. P. R. Co. (Iowa), 14 L. R. A. (N. S.) 590, holding that the master is not liable for the unauthorized acts of his employe in permitting a child to occupy a dangerous position on the master's vehicle or premises. See, also, Foster-Herbert Cut Stone Co. v. Pugh (Tenn.) 91 S.W. 199, 4 L. R. A. (N. S.) 804; Schulwitz v. Delta Lumber Co.,
While sometimes difficult to distinguish a license from an invitation, it is clear from the record in this case that the plaintiff was neither a licensee nor invitee. A license implies permission or authority. The permission and authority amounting to a license must be either expressly or impliedly granted. A mere sufferance or failure to object to one's presence upon another's premises is not sufficient within itself to constitute a license, unless under such circumstances that permission should be inferred. Elliott on Railroads, vol. 3, sec. 1245. Neither sufferance, nor permission, nor passive acquiescence, is equivalent to an inivitation. Elliott on Railroads, vol. 3, secs. 1154 and 1249. The permission of the night watchman for plaintiff to assist him and ride on the pilot step of the engine did not make plaintiff an invitee. The night watchman had no authority to invite the plaintiff to assist him or to permit him to occupy the place on the engine pilot step. That is clear. Forbrick v. General Electric Co., 92 N Y Supp. 36; Larmore v. Crown Point Iron Co.,
The majority having reached the conclusion that whether the engineer was negligent or not in running his engine, knowing the plaintiff was on the running board, was a question of fact for the jury, they fully agree with counsel for the defendant that "The question in the case is simply this: Does the evidence furnish sufficient facts under the law to warrant a recovery?" Being thus convinced that it does, and that no other question is argued in this court, it follows that the judgment of the court below must be affirmed.
RAINEY, C. J., and KANE, PITCHFORD, JOHNSON, and McNEILL, JJ., concur; HARRISON, V. C. J., dissenting.
Dissenting Opinion
The opinion of the majority expresses my views down to where the majority conclude that counsel for the plaintiff in error have waived all assignments of error except one and limited their contention in this court to the sole question as to whether or not the evidence warrants a recovery in favor of the plaintiff. The petition in error assails the correctness of the court's instructions to the jury, and I am convinced from a careful consideration of the brief and abstract filed by plaintiff in error that its counsel did not intend to waive the assignments of error attacking the correctness of the court's instructions. It would serve no useful purpose to review the brief and argument for plaintiff in error. Suffice it to say that in my judgment the correctness of the instructions to the jury is presented for this court's consideration. One's assurance of the soundness of his own conclusions is always shaken by the contrary views of his associates, but being convinced that the plaintiff in error has not waived its assignments of error assailing the correctness of the instructions to the jury, I find myself unable to conclude that the instructions to the jury fairly present the law.
The court delivered ten separately paragraphed instructions to the jury, the fourth, fifth, and sixth of which cover the question of negligence, and are as follows:
"(4) If you find from the evidence in this case, by a fair preponderance thereof, that the plaintiff was allowed and permitted by G.A. Spruell, the night watchman of the engine of the defendant company, to get on the pilot step of the engine of defendant while said Spruell was in the operation of said engine for defendant, and that it was dangerous for plaintiff at his age and experience to be there, and you further find that it was negligence on the part of said Spruell in allowing or permitting said plaintiff to be on said pilot step while said engine was in motion, if he did so allow and permit him at said time, and you further find that the plaintiff was thrown off, or fell off, of said pilot step and was permanently injured, and that his injury was proximately caused by the negligence, if any, of said Spruell in permitting him to be on the pilot step of the engine while said engine was in motion, then you will find for the plaintiff against the defendant, unless you find that the plaintiff was guilty of contributory negligence.
"(5) If you find that G.A. Spruell saw and permitted the plaintiff on the pilot of the engine while the engine was in motion, and you further find that the plaintiff under the circumstances was in a perilous position, and you further find that G.A. Spruell realized that the plaintiff was in a perilous situation and moved the engine under such circumstances, and you further find that it was negligence for G.A. Spruell to move said engine while the plaintiff was on the pilot step thereof, and said negligence, if any, was the proximate cause of said plaintiff's injury, it would be your duty to find for the plaintiff.
"(6) If you believe from the evidence that plaintiff's injury, if any, was caused by the negligence of the plaintiff in trying to alight from the engine while the same was in motion, and that the rate of speed at which the engine was running would cause an ordinary boy of the age, knowledge, and experience of plaintiff to realize the danger incident thereto, it will be your duty to find a verdict for the defendant."
The ability of a person standing on the pilot step of an engine to appreciate the incidental dangers and take care of himself under the circumstances, is not important solely for the purpose of determining whether or not the person standing on the pilot step was guilty of contributory negligence. There is no such thing as contributory negligence in the absence of negligence on the part of *287
the defendant. The first question in every case of this character is this: Was there any primary negligence? Was the defendant guilty of negligence? And if the defendant was not guilty of negligence, then the case ends. Here was a boy, past 15 years of age, who had been around the engine and cars in friendly association with the watchman for about two weeks prior to the injury; he had learned to make signals, and was not alone interested from curiosity; he wanted to learn the railroad business, and there is nothing in this record to indicate that he was not entirely normal for a boy of his age. It is true he had not been attending school very much, but just how much the record does not plainly say; and then, besides, so-called book learning in either public or private schools is not a correct test of a boy's ability and competency to understand the dangers incident to standing on the pilot step of a moving engine, and no test for determining whether or not a boy of his age was incapable of taking care of himself under the circumstances. It is true, he was raised in the country, but he had been working around the lumber camp, earning a man's wages, and so far as this record is concerned, there is not a line of evidence, not a scintilla of evidence, showing or tending to show that he was not a boy of ordinary intelligence for his age. He was not a "sissy boy." The record convinces me that he was as alert and competent to take care of himself as a grown man, though I concede that the question of his competency and ability to take care of himself under the circumstances was a proper question to submit to the jury. While the age, ability, and competency of a trespasser are immaterial where the master's servants discover him in a perilous position from which he apparently cannot extricate himself, the position in and of itself is not sufficient. Whether the position of a trespasser or mere licensee is perilous in the sense that it creates a duty on the, part of the railroad to exercise ordinary care to avoid injuring him depends upon something more than the place occupied. In addition to the place occupied, one of three things must appear to the railroad's servants: (1) either that he did not know of his danger or peril and therefore could not be presumed to take care of himself, or (2) that he knew of his danger but could not extricate himself, or (3) that he could not extricate himself from his place of peril, irrespective of whether or not he had knowledge thereof. Being a trespasser or mere licensee, plaintiff is not in a position to invoke the doctrine of apparent authority of the watchman, and can only hold the company liable for acts of the watchman done within the scope of his actual authority, express or implied. Elliott on Railroads, vol. 3, sec. 1255. The majority opinion expresses my view in holding that the watchman in moving the engine was within the scope of his service. But I am convinced the plaintiff must show something else in addition to the moving of the engine by the watchman. No one will contend that the plaintiff was a passenger and that the railroad owed him the duty it owes a passenger. Finley v. Hudson Electric R. Co., 19 N Y Supp. 621; White v. Illinois Central R.,Co. (Miss.) 55 So. 593; Clarke v. L. N. R. Co. (Ky.) 111 S.W. 344; Roberts v. Southern Pacific R. Co. (Mo. App.) 150 S.W. 717; Flower et al. v. Pennsylvania R. Co., 69 Pa. St. 210, 8 Am. Rep. 251. Plaintiff must show either that some act of negligence on the part of the company intervened between the starting and running of the engine and the boy's injury which primarily caused the injury, or that the plaintiff neither had nor apparently had sufficient judgment and discretion to appreciate the peril of his position on a moving engine and take care of himself under the circumstances. The burden of proof is on the plaintiff to prove these things, one or the other. Contributory negligence is a defense, but the issue as to whether or not there was contributory negligence cannot be reached until after it has been determined first that the defendant was guilty of negligence. The instructions given by the court and excepted to by the defendant do not draw the line between want of authority in the watchman to invite or permit the boy to be on the engine, and liability irrespective of want of authority. Instruction No. 4 is erroneous in that it substantially instructed the jury that defendant was liable if it found three concurrent things, to wit: (A), that the watchman permitted the plaintiff to go on the pilot step of the engine while he was in charge of the engine; (B) that it was "dangerous for plaintiff at his age and experience to be there", and (C) that it was negligence for the watchman to permit plaintiff to go on the pilot step. "A", above, is wrong, because defendant was in no way responsible for the act of the watchman in permitting the plaintiff to go on the pilot step. The watchman was wholly without the scope of his authority and not acting in the service of his master in permitting the boy to get on the pilot step. The authorities settle this beyond question. Keating v. Michigan Central R. Co.,
"If you find from a preponderance of the evidence that the plaintiff, by reason of his age and want of intelligence, was not capable of appreciating the danger of riding upon the pilot step of the engine, and that the watchman invited or permitted him to get upon it, and it was apparent to a prudent man operating the engine under similar circumstances that the plaintiff was not capable of understanding the dangers incident to his position and apparently unable to take care of himself under the circumstances, then the defendant is liable for the injuries inflicted by running the engine, although defendant's watchman may have been forbidden by the rules of the railroad and his general instructions to permit anyone to ride upon the engine. If, however, you find that the plaintiff had such a degree of intelligence that he could and should have appreciated and understood the danger of his act, or that he was apparently capable of understanding the danger of riding on the pilot and taking care of himself under the circumstances the engine was actually run, then the burden is upon plaintiff to prove that the watchman who invited or permitted him to ride upon the engine had authority to do so, and the rules of the company forbidding employes to permit persons to ride upon the engine are admissible upon this issue, whether the plaintiff knew of their existence or not. And if under such circumstances you find the watchman had no such authority, then the plaintiff cannot recover."
See M., K. T. R. Co. v. Rodgers (Tex.)
This court has applied section 6005, Rev. Laws 1910, in numerous cases, and time does not permit an analysis of them. That section says that no judgment shall be set aside or new trial granted by the appellate court "on the ground of misdirection of the jury * * * unless, in the opinion of the court to which application is made, after an examination of theentire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right." I agree with the authorities holding that it is not enough to show that the trial court committed error — the burden is on the appellant to show that the error was prejudicial. This court does not try law cases de novo, but on the record from the court below. Section 5002, Rev. Laws 1910, requires the court to instruct the jury. The trial judge is not the Judge of the facts, but is the judge of the law. The jury is not the judge of the law, but of the facts. The sole and only purpose of the charge to the jury is to give it the legal rules controlling its consideration of the facts and conclusions therefrom. I construe section 6005, Rev. Laws 1910, to mean this: If the instructions are erroneous in that they misdirect or fail to properly instruct the jury with respect to the legal rules controlling its deliberations on the *289
vital issue of fact in the case, then this court should grant a new trial or examine the entire record and decide the case uninfluenced by the verdict. What I understand by examining the entire record is not a mere examination for the purpose of ascertaining whether or not there is any evidence reasonably tending to support the verdict of the jury, but whether or not the verdict of the jury is correct — the right verdict. The great weight of American authority, both federal and state, holds that in the case of error, prejudice will be presumed unless the record shows that it was harmless. 2 Standard Proc. 471. The difficulty arises in the effort to determine what is harmless and what is prejudicial error. If an instruction on an abstract or collateral question is erroneous, then it may be said to be harmless and there is no presumption of prejudice. But the parties are entitled to have the jury instructed, and that means that the instructions are a necessary part of the trial according to law. No one denies that a party is entitled to have his case tried by law and according to legal principles. When the error is in the concrete, goes to the very marrow of the vital question of fact involved, how can this court decide whether or not the error was prejudicial unless it examines all the facts and decides that the verdict should have been for the winning party? When the erroneous instruction is not in the abstract, but in the concrete, that is, an instruction going to the very marrow of the question, and it is erroneous, then one or the other of two things must be done by this court: (1) Either the judgment should be set aside and the case remanded for a new trial on the ground that it is a statutory and constitutional right of a party to have correct and legal instructions given to the jury, and that erroneous instructions in the concrete amount to a denial of a constitutional or statutory right; or (2) this court must examine all the evidence — that is, consider the evidence independent of and uninfluenced by the jury's verdict, consider the evidence de novo, and arrive at its own conclusion — and if from an examination of all the evidence, this court decides that the winning party was not entitled to the verdict, then the case should be reversed. In my opinion, it is more important to maintain the integrity of the law than it is to sustain the isolated verdict of a jury. When the error goes to the marrow of the case, when the erroneous instruction is misleading on the vital issue of fact, then the judgment should be reversed or this court should examine the evidence de novo on the theory that the adjudicated error in the instruction sets the matter at large and confers upon this court jurisdiction to examine the evidence for the purpose of deciding the question of fact put in issue between the parties, as distinguished from the usual and established rule that this court in law cases passes only upon questions of law, and not upon questions of fact. Whether there is sufficient evidence to go to the jury in the first instance is a question of law. McDonald v. Strawn (decided by this court June 1, 1920)
Believing the instructions to be erroneous on the vital question in the case, I pass to an examination of the facts uninfluenced by the verdict of the jury. Here was a boy past 15 years of age who had been around the engine and cars in friendly association with the watchman for about two weeks prior to the injury; he had learned to make signals, and was not alone interested from curiosity; he wanted to learn the railroad business, and there is nothing in this record to indicate that plaintiff was not entirely normal for a boy of his age. There is nothing in the record to show that he was not as competent as a full grown man to appreciate the dangerous position he occupied on his own volition, and to take care of himself under the circumstances. Plaintiff does not contend that any act of the watchman or any defect in the machinery caused him to fall *290 off the engine. He had been working in the lumber camps, working with his father running a saw, and drawing a man's wages. He weighed 130 pounds. The pilot stop of an engine is made for the very purpose of riding on it during switching. The boy was holding on to the hand-holds and no defect in the hand-holds or engine or road-bed caused him to fall off. I do not reach the question of contributory negligence. The first question is: Was the defendant negligent? And that depends on whether or not it owed him any duty. The watchman had no authority to permit the plaintiff, a trespasser, to get on or ride on the engine pilot. But when the watchman found him on the engine pilot, the question is whether or not starting and running the engine without steam, at a speed not in excess of 2 1/2 miles per hour, constituted primary negligence on the part of the company. Under all the facts and circumstances, I am of the opinion the plaintiff has not shown primary negligence by a preponderance of the evidence, and I think the judgment should be reversed.