Opinion by
ROBBERTS, C.
(after stating the facts as above). Counsel for defendant in their briefs submit the following reasons why this case should be reversed:
“(1) Because, plaintiff failed to show any negligence on the part of defendant; (2) because the contributory negligence of the plaintiff was conclusively established by the evidence; (3) because the plaintiff was permitted to testify as to the effect of the alleged negligence of defendant had upon her health, when there were no allegations in her petition authorizing same; (4) because plaintiff asks in the prayer of her petition for $2 compensatory damages, and for $1,997 punitive damages, and the evidence shows clearly and conclusively that she is not entitled to more than the
$2 prayed for, if that; and a verdict was returned for $500; (5) because of errors of the court in its instructions to the jury, especially as to the measure of damages/’
The first contention is that the plaintiff failed to show any negligence on the part of defendant. As stated by Justice Hayes, in the former opinion in this case' (31 Okla. 521, 122 Pac. 502, 39 L. R. A. [N. S.] 663)
“The gist of the negligence alleged” in plaintiff’s petition “is that upon inquiries by her of the servants of defendant,” who were in charge of the train upon which she was riding, “before reaching Sapulpa, for information that would enable her to know where she would have to make ' the change, said servants neglected and refused to give her such information.”
The allegation charges not only negligence, but willful and intentional misconduct, and, if proven, would clearly show negligent and intentional misconduct on the part of defendant. In support of this allegation, the plaintiff testified that she asked the conductor on two different occasions if she had to change at Sapulpa, and he did not answer her at either time. Of course, that was denied by the conductor, but with that the court is concluded. It was, and is, a question for the jury. The law as laid down by Justice Hayes,
supra,
upon the authority of Hutchinson on Carriers, sec. 1129 (2d Ed.) is: '
“It is the duty of a carrier to furnish those who take passage upon its trains sufficient information to enable them to embark upon the trains by which they can reach their destination, and that they may be enabled to pursue their journey without unnecessary danger or delay.”
“A verdict or findings of the jury, based upon evidence reasonably tending to support them, will not be disturbed on appeal.”
(Binyon et al. v. Lyle,
28 Okla. 430, 114 Pac. 618 [approved and adopted by many other decisions in this court].)
The second contention of defendant is that plaintiff was guilty of such contributory negligence as would preclude her from recovering, and in support of this they contend that it is a matter of common observation that stops on railroads for meals, and all junction points, are always called, and, further, the fact that plaintiff remained in the car for 30 minutes at Sapulpa, while the passengers and crew were taking breakfast, without inquiring of some of the passengers or the ticket agent, or from some other employee or person, if a change of trains or cars was necessary, is inconsistent with ordinary care and prudence, and, taken in connection with the fact that she had, just prior to reaching Sapulpa, made at least two futile attempts to ascertain if she would have to change at that station, is conclusive evidence of gross negligence on the part of plaintiff, in not following up said inquiries.
All these questions of contributory negligence, we must presume, were, under proper instructions, submitted to the jury and, within the well-known rule, will not be disturbed. It must be conceded that the defendant was not bound to give the plaintiff special personal notice that a change of cars was necessary, and also that all that could be required of the defendant would be to give the usual call in the coach of the arrival at the destination of a passenger, or at such stations where a change of cars or trains might be expected; but this case is not based upon these propositions. As stated before, the gist of the plaintiff’s complaint is not for failure to give such general notice or information, but her cause of action herein is founded on the neglect and refusal of the servants of the defendant to notify the plaintiff of the necessary changes, when called on by her for such information, which means more than negligence, and amounts to a positive, intentional violation of duty.
The question as to the real facts in the case is by the law and decisions of this court taken away from the trial court and placed in the hands of the jury, and although this court may differ with the jury in its opinion of the true'facts, nevertheless, we are bound by the findings of the jury unless they are clearly and manifestly wrong, which we cannot presume to say.
The third contention of counsel is that the plaintiff was permitted, over the objection of defendant, to testify as to the effect the alleged negligence of defendant had upon her health, which was not included in the allegations of her petition. The allegation of the petition is that “she suffered great mental pain and anguish, and great physical exhaustion.” In support of this allegation, among other things, she testified as follows:
“Q. Now, Miss Lena, I will get you to tell the jury what your condition was, your physical condition, at the time you got there? A. Well, I was in very bad shape. Q. What effect did the anouncement of your mother’s death have upon you? A. I couldn’t hardly stand it; it just nearly killed me is all. Q. Then, after that, you say the doctor took charge of you there? A. Yes, sir. Q. And what was your condition after that, for how long? A. Well, I was in pretty bad shape for some time after that; my health was poor for a long time. Q. What was the matter with your health? A. Nervousness. Q. Have you fully recovered from that? A. No, sir; I have not. Q. How long were you under the treatment of a physician after this, by reason of the shock of being left on this train? A. I was under, his direct care for several months. Q. Can you tell the jury what was the cause of that? A. Well, it was because I knew that I had missed my train, and it would throw me so late, and I didn’t know—I was afraid that my mother would be dead when I got there, and I was worried on that account.”
Defendant insists that this particular testimony is immaterial and prejudicial, because the issues do not include the impairment of health. The effect of this contention is that the court should say as a matter of law that “suffering great mental pain and anguish and great physical exhaustion” does not affect or impair the health. This we cannot do. In her testimony, the plaintiff says the trouble with her health was nervousness. This was all left to the jury without the aid or assistance of competent expert testimony, and this court is not inclined to assume the responsibility of entering into the field of scientific diagnostic investigations of this character.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion by
ROBBERTS, C.
(after stating the facts as above). Counsel for defendant in their briefs submit the following reasons why this case should be reversed:
“(1) Because, plaintiff failed to show any negligence on the part of defendant; (2) because the contributory negligence of the plaintiff was conclusively established by the evidence; (3) because the plaintiff was permitted to testify as to the effect of the alleged negligence of defendant had upon her health, when there were no allegations in her petition authorizing same; (4) because plaintiff asks in the prayer of her petition for $2 compensatory damages, and for $1,997 punitive damages, and the evidence shows clearly and conclusively that she is not entitled to more than the
$2 prayed for, if that; and a verdict was returned for $500; (5) because of errors of the court in its instructions to the jury, especially as to the measure of damages/’
The first contention is that the plaintiff failed to show any negligence on the part of defendant. As stated by Justice Hayes, in the former opinion in this case' (31 Okla. 521, 122 Pac. 502, 39 L. R. A. [N. S.] 663)
“The gist of the negligence alleged” in plaintiff’s petition “is that upon inquiries by her of the servants of defendant,” who were in charge of the train upon which she was riding, “before reaching Sapulpa, for information that would enable her to know where she would have to make ' the change, said servants neglected and refused to give her such information.”
The allegation charges not only negligence, but willful and intentional misconduct, and, if proven, would clearly show negligent and intentional misconduct on the part of defendant. In support of this allegation, the plaintiff testified that she asked the conductor on two different occasions if she had to change at Sapulpa, and he did not answer her at either time. Of course, that was denied by the conductor, but with that the court is concluded. It was, and is, a question for the jury. The law as laid down by Justice Hayes,
supra,
upon the authority of Hutchinson on Carriers, sec. 1129 (2d Ed.) is: '
“It is the duty of a carrier to furnish those who take passage upon its trains sufficient information to enable them to embark upon the trains by which they can reach their destination, and that they may be enabled to pursue their journey without unnecessary danger or delay.”
“A verdict or findings of the jury, based upon evidence reasonably tending to support them, will not be disturbed on appeal.”
(Binyon et al. v. Lyle,
28 Okla. 430, 114 Pac. 618 [approved and adopted by many other decisions in this court].)
The second contention of defendant is that plaintiff was guilty of such contributory negligence as would preclude her from recovering, and in support of this they contend that it is a matter of common observation that stops on railroads for meals, and all junction points, are always called, and, further, the fact that plaintiff remained in the car for 30 minutes at Sapulpa, while the passengers and crew were taking breakfast, without inquiring of some of the passengers or the ticket agent, or from some other employee or person, if a change of trains or cars was necessary, is inconsistent with ordinary care and prudence, and, taken in connection with the fact that she had, just prior to reaching Sapulpa, made at least two futile attempts to ascertain if she would have to change at that station, is conclusive evidence of gross negligence on the part of plaintiff, in not following up said inquiries.
All these questions of contributory negligence, we must presume, were, under proper instructions, submitted to the jury and, within the well-known rule, will not be disturbed. It must be conceded that the defendant was not bound to give the plaintiff special personal notice that a change of cars was necessary, and also that all that could be required of the defendant would be to give the usual call in the coach of the arrival at the destination of a passenger, or at such stations where a change of cars or trains might be expected; but this case is not based upon these propositions. As stated before, the gist of the plaintiff’s complaint is not for failure to give such general notice or information, but her cause of action herein is founded on the neglect and refusal of the servants of the defendant to notify the plaintiff of the necessary changes, when called on by her for such information, which means more than negligence, and amounts to a positive, intentional violation of duty.
The question as to the real facts in the case is by the law and decisions of this court taken away from the trial court and placed in the hands of the jury, and although this court may differ with the jury in its opinion of the true'facts, nevertheless, we are bound by the findings of the jury unless they are clearly and manifestly wrong, which we cannot presume to say.
The third contention of counsel is that the plaintiff was permitted, over the objection of defendant, to testify as to the effect the alleged negligence of defendant had upon her health, which was not included in the allegations of her petition. The allegation of the petition is that “she suffered great mental pain and anguish, and great physical exhaustion.” In support of this allegation, among other things, she testified as follows:
“Q. Now, Miss Lena, I will get you to tell the jury what your condition was, your physical condition, at the time you got there? A. Well, I was in very bad shape. Q. What effect did the anouncement of your mother’s death have upon you? A. I couldn’t hardly stand it; it just nearly killed me is all. Q. Then, after that, you say the doctor took charge of you there? A. Yes, sir. Q. And what was your condition after that, for how long? A. Well, I was in pretty bad shape for some time after that; my health was poor for a long time. Q. What was the matter with your health? A. Nervousness. Q. Have you fully recovered from that? A. No, sir; I have not. Q. How long were you under the treatment of a physician after this, by reason of the shock of being left on this train? A. I was under, his direct care for several months. Q. Can you tell the jury what was the cause of that? A. Well, it was because I knew that I had missed my train, and it would throw me so late, and I didn’t know—I was afraid that my mother would be dead when I got there, and I was worried on that account.”
Defendant insists that this particular testimony is immaterial and prejudicial, because the issues do not include the impairment of health. The effect of this contention is that the court should say as a matter of law that “suffering great mental pain and anguish and great physical exhaustion” does not affect or impair the health. This we cannot do. In her testimony, the plaintiff says the trouble with her health was nervousness. This was all left to the jury without the aid or assistance of competent expert testimony, and this court is not inclined to assume the responsibility of entering into the field of scientific diagnostic investigations of this character. The personal opinion of the writer hereof is that “suffering great mental pain and anguish and physical exhaustion” might, under some circumstances, affect the health of a person; but, as said before, we have left that to the jury.
The fourth insistence is that the plaintiff prays for only $2 compensatory damages, and for $1,997 punitive damages, and the evidence shows that she is not entitled to exceed $2 damages, if anything, while the verdict was returned for $500. If the findings of the jury as to the conduct of the servants of the defendant are correct, there can be no question as to plaintiff’s right to recover the $2 expended for extra railroad fare from Oklahoma City to Ardmore, and that we will consider as settled. This brings us to the question of the right to recover punitive damages, and therein the amount of such recovery, if any. The plaintiff prays “for judgment in the sum of $2 compensatory, and $1,997 punitive, damages.” In the former decision in this case it was said :
“We think the same principle that governs the right of a passenger to recover exemplary damages in cases where a passenger has been carried beyond his destination by fault
of the carrier in. not stopping its train or in failing to givS, notice of the train’s approach to the státion of the passenger’s destination, is applicable to this case; and that, while in. the absence of recklessness, willfulness, wanton or gross negligence the railway company is not liable to the passenger for exemplary damages, if, on the other hand, there is willful or reckless negligence, recovery of such damages may be had,
V. & M. R. R. Co. v. Scanlan,
63 Miss. 413;
Birmingham Ry., Light & Power Co. v. Nolan,
134 Ala. 329 [32 South. 715];
Chicago, St. L. & New Orleans Ry. Co. v. Scurr,
59 Miss. 456 [42 Am. Rep. 373];
Dorrah v. Ill. Cent. R. Co.,
65 Miss. 14 [3 South. 36, 7 Am. St. Rep. 629] ;
Memphis & Cincinnati Packet Co. v. Nagel,
97 Ky. 9 [29 S. W. 743];
Harlan v. Wabash Ry. Co.,
117 Mo. App. 537 [94 S. W. 737] ;
Samuels v. Richmond & Danville Ry. Co.,
35 S. C. 493 [14 S. E. 493] 28 Am. St. Ren. 883;
Louisville & Nashville Ry Co. v. Ballard,
88 Ky. 159 [10 S. W. 429] 2 L. R. A. 694.
“The action of defendant complained of in the case at bar is not one of simple omission to perform a duty; the negligent act does not consist of misdirecting plaintiff or wrongfully informing her, but of intentional and willful refusal to give her information under circumstances that made it the duty of the carrier and its servants to give it to her. If the allegations of the petition- be true—and for the purpose of the demurrer they are assumed to be-—-approaching the very station where it was necessary for plaintiff to depart from the train to make a change of cars in order to reach her destination over defendant’s line of railway on which she had bought a ticket, plaintiff not only once, but repeatedly, made an effort to ascertain from defendant’s servants such information regarding her route as would enable her to know where to change cars; but her efforts were disregarded and the necessary instructions refused her. This willful negligence on the part of defendant’s employees resulted in her being carried off her route, delayed in her journey, and ultimately landed at a point on defendant’s road where she was compelled to take passage over another railway company’s line in order to reach the end of her journey.”
That is the settled law of this case, and is in line with the great weight of authorities on the subject. We are not unmindful of the direct conflict in the testimony of the plaintiff and the conductor in charge of the train, and we are not justified in adopting our views as to the weight of the evidence on that question. Our duty is to adopt the findings of the jury, which we do, and therefore conclude that the conductor, upon the repeated requests of plaintiff, refused to give her the information as to change of cars,at Sapulpa, and because of such refusal she was carried to Oklahoma City instead of her home at Ardmore. Counsel for defendant cite Thompson on Carriers of Passengers, sec. 27, p. 573, where it is said:
“ ‘Exemplary,’ ‘punitive,’ or ‘vindictive’ damages, sometimes called ‘smart money,’ are only awarded in cases *where there is an element of fraud, malice, or such a degree of negligence as indicates a reckless indifference to consequences, oppression, insult, rudeness, caprice, willfulness, or other causes of aggravation in the act of omission, causing the injury.”
This language is peculiarly applicable here wherein it is said:
“* * * Punitive damages are only awarded in cases where there is an element of fraud, malice, or such a degree of negligence as indicates a reckless indifference to consequences, oppression, insult, rudeness, willfulness, or other causes of aggravation in the act or omission, causing the injury.”
We are also of opinion that this case, as settled by the findings- of the jury, comes within the language of section 2851, Rev. Laws 1910, which is as follows:
“In any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud or malice, actual or presumed, the jury,
in addition to actual damages, may give damages for the sake of example, and by way of punishing the defendant.”
Considering the question of the amount of punitive damages fixed by the jury, we take it that for compensatory damages they did not exceed the sum of $2 as prayed for, and therefore the balance of the $500 included in the verdict was for punishment of the defendant. In fixing this amount, we cannot take into consideration the death of the mother, nor in fact any other matter,- except that the conductor refused to give plaintiff the information asked for, and to our mind, under all the circumstances, a fine of $300 would be sufficient, and the judgment should be reduced to the amount of $302.
We have carefully considered the objections to instruction No. 13, given by the court; and, under all the circumstances of the case, and the holdings herein, we are of the opinion that no error prejudicial to plaintiff was committed in giving that instruction. We therefore recommend that said case be modified as herein before suggested, and affirmed.
By the Court: • It is so ordered.