St. Louis S. F. R. Co. v. Clampitt , 55 Okla. 686 ( 1915 )

The first assignment of error is that, owing to irregularity in the proceedings and conduct of the court, the defendant was prevented from having a fair trial. This assignment of error is based on the cross-examination of several of the defendant's witnesses by the court, but it is not necessary to set the cross-examination out in full. But we are not prepared to say that it constitutes reversible error. The practice of the trial court taking charge of a witness and indulging in a long cross-examination is not to be commended. In N YTransportation Co. v. Garside, 157 Fed. 521, 85 C. C. A. 285, it is held:

"It must be admitted that a continual interposition by the trial judge in the examination of witnesses may prejudice the jury to the extent claimed. Still the trial judge has a right, and, indeed, it is his duty, to see that the facts of the case are brought intelligibly to the attention of the jury, and to what extent he will interfere for this end is a matter of discretion."

In commenting on this case in Berwind-White Coal MiningCo. v. Firment, 170 Fed. 151, 95 C. C. A. 1, the Circuit Court of Appeals for the Second Circuit, says:

"We found no abuse of discretion in that case. In the case at bar the cross-examination by the court was much more extended, and, presumably through some errors either in the stenographic report or in its transcription into the case on appeal, there are passages where it is difficult to tell whether a particular statement is made by a witness in response to the court's questions, or is a summary by the court of what he understood the witness to have already testified to. Nevertheless, on a careful study of the record, we do not feel warranted in reversing on this exception. It may be proper, however, to expand somewhat the statement made in the Garside Case. Cases occasionally present themselves where a plaintiff or defendant is represented by incompetent counsel, and where the ends of justice require the trial judge to secure, so far as he can, a fair and full presentation of the case, so that the party who came into the court, expecting to have a full, fair, and just examination of the facts in controversy, will find his expectation realized. But where a party is represented by competent counsel — as the brief and oral argument demonstrate this plaintiff was — it would seem that the conduct of his side of the case had better be left to his own counsel. It is not unreasonable to assume that such counsel's study of the case and the information he possesses as to the personal equation of the different witnesses celled against his client may make him a more competent cross-examiner than the trial judge, who never knew of the issues in the case till the pleadings were opened. Indeed, it might sometimes happen that a well-laid plan to discredit a hostile and unfair witness would be disarranged and rendered futile by premature cross-examination. The safer course would seem to allow the examination by counsel — direct, cross, redirect, and recross — to conclude, and then, if anything is obscure, if some point seems to be overlooked, or if suspecting false swearing, * * * the judge can, and indeed ought to, intervene so that the ends of justice may be subserved. Where, however, he takes the cross-examination out of the hands of competent counsel, there is danger that the jury, from this fact alone, may draw conclusions unfavorable to the witness and to the party on whose behalf the witness is called."

We think the above is the sound rule on this question; and, while trial judges have the undoubted right to interrogate witnesses, and in certain cases it is their duty so to do, yet care should be taken to frame the questions in such a manner as not to intimate to the jury that the judge has any opinion as to the facts of the case or the credibility of the witness. While much of the evidence brought out by the court in its examination was not pertinent to the issues in the case, yet we cannot say, from an inspection of the record, and especially from the charge, that it probably resulted in a miscarriage of justice, or constituted a substantial violation of a constitutional or statutory right. Rev. Laws 1910, sec. 6005. Plaintiff in error relies on City of Newkirk v.Dimmers, 17 Okla. 525, 87 P. 603, but that case is distinguishable from the case at bar, as there the trial judge clearly intimated that the testimony of the witness was false, and that she had been procured by the plaintiff in error to falsely testify, but the record before us does not disclose matter to bring the case within the rule established by that decision.

The next assignment of error is that the court erred in overruling the demurrer to the evidence, and under this assignment we will also consider the refusal of the court to direct a verdict.

The question is not presented that the happening of an accident, in case of an employee, raises a presumption of negligence, and consequently the case of Patton v. Texas Pacific Ry. Co., 179 U.S. 658, 21 Sup. Ct. 275, 45 L.Ed. 361, does not apply, for while there is no direct evidence showing what caused the deceased to fall, there was evidence showing the condition of the platform, from which the jury might draw the inference that it was the condition of the platform that was the proximate cause of the death of the plaintiff's intestate. In Waters-Pierce Oil Co. v.Deselms, 18 Okla. 107, 89 P. 212, it is held:

"Where an accident has occurred resulting in the death of all the persons immediately connected therewith and there is no direct proof as to how the accident occurred, the manner of its occurrence may be shown by circumstantial evidence from which the jury may infer the manner and cause of the accident if the inference is a reasonable, although not" a necessary, one.

And this case was affirmed on writ of error by the Supreme Court of the United States in 212 U.S. 159, 29 Sup. Ct. 270, 53 L.Ed. 453. In Hayes v. Williams, 17 Colo. 465, 30 P. 352, it is held that what is the proximate cause of an injury, whether it be the original negligence of one party or the intermediate negligence of another party, is ordinarily a question for the jury, to be determined from the minor associated facts and circumstances. In Booker Tobacco Co.v. Walker, 38 Okla. 47, 131 P. 537, it is held:

"It is only when the evidence, with all the inferences that the jury could * * * draw from it, will be insufficient to support a verdict for plaintiff that the court is authorized to direct a verdict for defendant; and, unless the conclusion follows, as matter of law, that no recovery can be had upon any view that can be properly taken of the facts which the evidence tends to establish, the case should be left to the jury under proper instructions."

And see Creek Bank Trust Co. v. Johnson,33 Okla. 696, 127 P. 480, and St. L. S. F. R. Co. v. Long,41 Okla. 177, on page 212, 137 P. 1156, Ann. Cas. 1915C, 432.

Applying the principle decided by these cases, it cannot be said that there was no evidence to go to the jury in this case. The plaintiff's evidence tended to prove that the platform was out of repair; that at the place where plaintiff's intestate alighted from the train there were nails protruding above the surface of the platform; that some of the boards had holes in them; some would spring when trodden upon, and some were rotten at the edge next to the track. In the absence of direct evidence as to what caused the plaintiff's intestate to fall, it was within the province of the jury to consider this evidence, and the inference drawn by them that it was these defects that caused the accident is not an improbable one.

The next assignment of error complains of the admission of certain testimony. Among other things, the plaintiff was allowed to show that it was the habitual practice of brakemen to get on and off moving trains at stations, and this was admitted on the ground that the practice was so open and notorious that the superior officers of the corporation must have known of it. This evidence was competent, because it was in evidence that it was not practicable to do switching around stations without the brakeman getting on and off moving trains, and the rule of the plaintiff in error, introduced in evidence, only prohibits employees getting on and off trains or engines moving at a high rate of speed. The evidence was clearly admissible. In U. P. Railway Co. v. Springstwen,41 Kan. 724, 21 P. 774, it is held:

"A railway company by a rule prohibited conductors and engineers from making flying switches. The deceased, a brakeman, working under the direction of an engineer, was not guilty of contributory negligence when the manner of switching by which he was killed had been the usual and customary way of doing the same, though he knew of the rule."

And see. K. C. Ry. Co. v. Kier, 41 Kan. 662, 671, 21 P. 770, 13 Am. St. Rep. 311; A., T. S. F. R. Co. v.Slattery, 57 Kan. 499, 46 P. 941; Karns v.Railway, 87 Kan. 154, 123 P. 758.

Other evidence objected to was that the plaintiff below was allowed to show that it was not practical to do switching at depots unless the brakeman got on and off moving trains, and that plaintiff was allowed to show the condition of the platform three weeks after the accident, there being no evidence that its condition had changed, except the natural depreciation from the elements. No extended discussion is necessary to show that this evidence was competent, nor do the other exceptions to the admission of evidence require extended notice, for, even admitting the violation of the rules, if there was any under the express words of the rule that employees must not alight from trains moving at a high rate of speed, the question was fairly left to the jury.

The next assignment of error pertains to the charge as given, and also to the refusal to give certain specific instructions asked by the defendant.

We have carefully examined the entire instructions given by the court to the jury, and also those requested by the defendant, and we find that the instructions as given present the questions fairly and impartially, and, as far as those requested were applicable, they are covered by the instructions given. The court did not commit any error that this court can review in refusing to submit the special interrogatories to the jury in addition to the general verdict. See section 21, art. 7, of the Constitution, construed in King v. Timmons,23 Okla. 407, 100 P. 536; Cook v. State,35 Okla. 653, 130 P. 300.

The last assignment of error is that the jury did not apportion the amount of the recovery between the wife and child of the deceased, but this very question was decided adversely to the plaintiff in error in Central Vermont Ry. Co. v.White, 238 U.S. 507, 35 Sup. Ct. 865, 59 L.Ed. 1433, where it is held:

"A general verdict for the plaintiff may be returned by the jury in an action brought by the administratrix under the federal Employers' Liability Act (35 Stat. at L. c. 149), for the benefit of the widow and minor children of the deceased employee, without apportioning the damages between the beneficiaries."

We, therefore, recommend that the judgment be affirmed.

By the Court: It is so ordered.