« ForrigeFortsett »
Cyc. 835; Grand Rapids, etc., Ry. Co. V. not permissible for a landowner to wage a
by the railway company, but he failed to proley Co., 87 Pa. 28; Searl v. Lake Co. School cure service of summons until after the coilDist., 133 U. S. 553, 10 Sup. Ct. 374, 33 L. Ed. demnation proceedings had been perfected. 740; Albion Ry. Co. v. Hesser, 81 Cal. 435, 24
Hence, under the statute fixing the comPac. 288; Railroad Co. v. Armstrolig, 16 Cal.
mencement of an action as of the date of 85; Dunlap v. Ry. Co., 50 Mich. 470, 15 N.
the summons which is actually served, it W. 555; Secombe v. Milwaukee & St. P. Ry.
follows that the suit of Bebout for damages Co., 23 Wall. (U. S.) 108, 23 L. Ed. 67; In re
was not commenced until after the condemMetropolitan Elv. Ry. (Sup.) 12 N. Y. Supp.
nation proceedings were instituted and per506; Mead v. Elev. Ry. Co. (Super. Ct.) 24 N.
fected by amendments. The trial court erred Y. Supp. 908; Jacksonville, etc., Ry. Co. v.
in consolidating and trying the causes toAdams, 28 Fla. 631, 10 South. 465, 14 L. R. A.
gether. Everything that Bebout claimed 533. Upon the other hand, there are many
could be determined in the condemnation procases asserting the doctrine that where there ceedings, and, in any event, these proceedis nothing in the statute to indicate an in
ings were perfected and at issue before the tention on the part of the Legislature that
action for damages was at issue, and when
the condemnation cause went to trial the the remedy by condemnation should be exclu
other case should have been dismissed.
But sive, it is merely a cumulative remedy, and
the error in the proceeding only goes to a the landowner has his election as to which remedy he will avail himself of. 15 Cyc.
question of costs. Bebout was entitled to
a jury trial in the condemnation case. He 982; Smith v. Chicago & W. Co., 67 Ill. 191;
had not waived this right, and, as all the Strickler v. Midland R. R. Co., 125 Ind. 412,
costs of the trial were made in the con25 N. E. 455; Chicago, etc., R. R. Co. v. Pat
solidated cases, no injury was done. The terson, 26 Ind. App. 295, 59 N. E. 688; At
railway company, under the verdict of the chison, etc., Ry. Co. y. Weaver, 10 Kan. 344;
jury, was liable for the costs of trial and Cohen v. St. L., Ft. Scott & Wichita R. R.
final judgment in any event, and it is not to Co., 34 Kan. 158, 8 Pac. 138, 55 Am. Rep. 212;
be presumed that any more or greater exParsons Water Co. v. Knapp, 33 Kan. 752, 7
pense was incurred in trying the consolidated Pac. 568; Lee y. Pembroke Iron Co., 57 Me.
cases than would have been incurred in try481, 2 Am. Rep. 59; Harrington v. St. Paul, ing the condemnation case. Kor were any etc., Ry. Co., 17 Minn. 215 (Gil. 188); Hick
involved. The man v. Kansas City, 120 Mo. 110, 25 S. W.
only question submitted to the jury was 225, 23 L. R. A. 658, 41 Am. St. Rep. 681; Ash
the difference in value of Bebout's land bev. Cummings, 50 N. H. 591; White v. N. W.
fore and after the construction of the railN. C. R. R. Co., 113 N. C. 610, 18 S. E. 330, 32 way improvements. The conclusions here L. R. A. 627, 37 Am. St. Rep. 039; Fries v. reached make it apparent that the action Wheeling, etc., R. R. Co., 56 Ohio St, 135, 10 N. for damages brought by Bebout was impropE. 516; Schuylkill Nav. Co. v. McDonough, 33 erly brought, and must necessarily be at his Pa. 73; Parker v. East Tenn, Ry. Co., 13 Lea costs. The condemnation proceedings were (Tenn.) 669; Younkin v. Milwaukee Light, etc., proper and involved all the rights of both Co., 112 Wis. 15, 87, N. W. 861. While the for- | parties growing out of the appropriation of mer rule seems to be supported by the greater the land and the right of way by the railweight of authority, we think the rule giving way company, and by the terms of the statto the landowner, when his land has been in ute (Wilson's Rev. & Ann. St. 1903, & 1041) vaded and taken without his consent for rail. the Blackwell, Enid & Southwestern Railway purposes, the election to proceed under way Company was liable for all the costs of the statute for ascertaining damages in con the assessment of damages up to the time demination proceedings, or to maintain an in Bebout filed his demand for a jury trial, and, dependent suit for his damages, is more in having by the verdict of the jury recovered consonance with our embryonic condition and a verdict more favorable than the award of more certainly insures the adjustment of all the commissioners, he was entitled to recovadverse rights and interests in such cases, er all the costs in the condemnation proceedand we adopt such rule as the law of this ju ings. It appears from the record that the risdiction. However, under this rule, it is total costs accrued in both cases was $270.10.
Of this sum $89 accrued in the damage suit
entitled to. This question was before this prior to the consolidation. In no event is it court in the case of St. Louis, El Reno & proper to charge any of said amount against Western Railway Company v. Oliver, 18 the Blackwell, Enid & Southwestern Rail Okl. 87 Pac. 423, and, after reviewing way Company.
the Kansas cases upon the subject, the rule The plaintiffs in error contend that the was laid dowr. that: “In a case tried by Blackwell, Enid & Southwestern Railway jury, where it is clearly apparent that the Company offered before trial to confess judg. prevailing party is entitled to interest upon ment in the condemnation proceedings for
the amount found in the verdict, and it is the sum of $350, and that, inasmuch as Be unquestionably clear that the jury allowed bout only recovered $180 by the verdict of no interest, or where the court reserved the the jury, he should not recover any costs question of allowance of interest until after which were incurred after the offer to al verdict, and it is clearly ascertainable from low judgment was made. The statute (Wil
the verdict or uncontroverted facts the dates son's Rev. & Ann. St. 1903, § 4715) provides
from which and to which interest should be that; “The defendant in an action for the allowed, and the rate is fixed, the court may recovery of money only may, at any time be make the computation and add the interest fore the trial, serve upon the plaintiff or his so found to the sum found in the verdict, attorney an offer in writing to allow judgment and render judgment for the aggregate to be taken against him for the sum specified
amount.” This rule goes as far as the law therein. *
If the plaintiff fails to will warrant, and we think it unsafe to obtain judgment for more than was offered extend it. The case at bar does not come by the defendant, he shall pay the defend
within this rule. The court did not reserve ant's costs from the time of the offer.” If the question of interest from the jury. It the proceedings brought by the railway com was the duty of the jury to assess the entire pany to condemn its right of way and to damage, and we must presume that they did have the damages done to the landowner as
so. "In an action for the breach of an obsessed by commissioners is “an action for ligation not arising from contract, the recovery of money only," then the con interest may be given in the discretion of tention of the plaintiffs in error as to costs
the jury.” Wilson's Rev. & Ann. St. 1903, $
2727. is well taken. We do not think it comes
In the state of the record, we must within the designation of the statute. The presume that the jury exercised its discrecondemnation cause was instituted by the
tion. It was error for the court to add any railway company for the purpose of author additional sum to the verdict, and the amount izing it to take private property for its use
so allowed must be deducted from the judgwithout the consent of the owner. The ques
ment. It was the duty of the court to rention of damages and of compensation is an
der judgment upon the verdict. There was incident to the main cause. It is a special
no error in the assessment of damages by proceeding, initiated in a particular and spe
the jury, and the judgment must follow the cial manner, different from that in bringing
verdict. an ordinary action for the recovery of mon
We find no error necessitating the grantey. The commissioners are required to de- ! ing of a new trial. The trial court should termine the quantity, boundaries, and value
have modified the judgment as to amount of the property taken or amount of injury
and as to costs. done to the property of the owner, and on
The amounts all appearing approximately demand for jury trial the issues are tried
certain in the record, this court will set de novo, and the question of the necessity
aside and vacate the judgment and make it for the taking and the quantity claimed are
conform to the judgment that the district issues of fact that ordinarily may be inquired
court should have rendered. And said judginto in such proceedings. It must necessarily
ment for the sum of $389.20 and for costs is follow that such a proceeding is not one for
set aside and vacated, and judgment is now the recovery of money only, and the offer here rendered upon the verdict of the jury. of the plaintiff in error to confess judgment
And it is now hereby ordered and adjudgeri before trial for a greater sum than the
that the defendant in error, J. J. Bebout, amount awarded in the verdict of the jury
do have and recover of and from the Blackcannot affect the question of taxation of well, Enid & Southwestern Railway Comcosts.
pany the sum of $180, with interest thereon The next complaint arises upon the action at the rate of 7 per cent. per annum from of the court in adding to the amount of the the 21st day of February, 1907, and the sum verdict of the jury the sum of $109.20 as and of $187.11, costs accrued in said condemnafor interest. There is nothing in the record tion proceedings; and said cause No. 737. to indicate that the jury did not in the
J. J. Bebout v. Blackwell, Enid & Southwestassessment of damages include the total ern Railway Company and St. Louis & Sim amount that they deemed the defendant in Francisco Railroad Company, is dismissed at error entitled to, and, in the absence of any
the costs of the plaintiff, J. J. Bebout. And indication to the contrary, the presumption said condemnation proceedings are in all is that they included in their award of dam things confirmed and made effectual. The ages every element that the laudowner was costs in this court are ordered taxed to the
defendant in error. All the Justices concur, 8. TRIAL DIRECTION OF VERDICT. except PANCOAST, J., who tried the cause Where there is a material controverted
question of fact upon which reasonable minds below, not sitting, and IRWIN, J., absent.
might fairly come to different conclusions, it is error for the court to direct a verdict.
[Ed. Note.-For cases in point, see Cent. Dig. (19 Okl. 324)
vol. 46, Trial, f 171.) LAXE v. CHOCTAW, O. & G. R. CO.
(Syllabus by the Court.) (Supreme Court of Oklahoma. Sept. 5, 1907.) Error from District Court. Pottawatomie 1. PLEADING-AMENDMENT OF PETITION-OP County ; before Justice B, F. Burwell. ERATION AND EFFECT.
Action by Lewllen C. Lane against the Where an amended petition is filed in a Choctaw, Oklahoma & Gulf Railroad Comcause, and no part of the original petition is referred to or adopted into the amended peti- pany. Judgment for defendant, and plaintiff tion, such original petition is superseded, and is brings error. Reversed, and new trial orno part of the record; and while it may be in dered. troduced in evidence by the adverse party, the same as any other writing signed by the party, The plaintiff in error, L. C. Lane, commencsubject to be explained, its contents cannot be ed his action in the district court of Potconsidered upon the trial, either as part of the record or as admissions of the plaintiff, unless
tawatomie county against the Choctaw, Oklaintroduced in evidence.
homa & Gulf Railroad Company for the pur(Ed. Note.--For cases in point, see Cent. Dig. pose of recovering damages for injuries alvol. 39, Pleading, $ 736.]
leged to have been caused by the negligence 2. CARRIERS CARRIAGE_OF PASSENGERS of the defendant's servants in the operation PLEADING---RULES AND REGULATIONS.
of a railway train upon which he was a pasWhere the plaintiff sues a carrier of passengers for injuries alleged to have been received
senger in May, 1902. The Choctaw', Oklahoby him by the negligence of the carrier while ma & Gulf Railroad Company was at that riding on a baggage car, the carrier must plead time a common carrier of freight and passenits rules and regulations relating to passengers and where they may ride, and allege the viola
gers by steam railway between the stations tion thereof by the plaintiff, if it desires to
of Tecumseh and Shawnee, in Pottawatomie avail itself of such a defense.
county, Okl., as well as to other points, both 3. SAME-PERSONAL INJURIES-CONTRIBUTORY north and south of said stations. On the day NEGLIGENCE.
of the alleged accident the company was operIt is not, under our statutes, negligence per se for a passenger on a mixed railroad train to
ating a mixed train, composed of different occupy a seat in a baggage car.
cars for passengers, baggage, and freight, and 4. SAME — PERFORMANCE OF CONTRACT — AC the plaintiff purchased a ticket at the railway COMMODATIONS.
station at Tecumseh, and at the proper time It is the duty of a carrier of passengers for
boarded the train with a number of other pasreward to provide fit and suitable accommodations for all the passengers that it receives and sengers, and, observing no unoccupied seat in attempts to transport, and “proper accommoda the compartments intended for passengers, tions" means seats such as are usually provided
went into a compartment used for transportand in use in a vehicle intended for the transportation of passengers.
ing baggage and took a seat upon a box [Ed. Note.--For cases in point, see Cent. Dig.
therein located. The car in which he took vol. 9, Carriers, $ 1051.]
passage was a combination car, one portion 5. SAME.
or end of which was regularly provided with A carrier of passengers for hire is not al seats for passengers, and the other portion lowed to overcrowd its vehicles or cars, and a passenger who goes upon a train for passage is
or end was used for baggage. There was a not negligent in occupying a position in the
door opening between the two compartments. baggage compartment of a combination car, The train started north from Tecumseh stawhere there are no unoccupied seats in the pas
tion towards Shawnee, and the plaintiff and senger compartments or coaches. [Ed. Note.--For cases in point, see Cent. Dig.
several other passengers were occupying the vol. 9, Carriers, f 1375.]
baggage compartment of the combination car.
Whether there was a separate passenger 6. SAME.
In order to absolve itself from liability for coach in the train, in addition to the combinainjuries to a passenger riding in its baggage tion coach, was a disputed question of fact on car, the carrier must adopt and post in a con the trial; there being evidence both ways on spicuous place in its passenger cars printed rules and regulations forbidding or warning passen
the subject. The train ran about a quarter gers not to ride in such baggage car, and must, of a mile, and then stopped. The engine was in addition to such notices, provide such passen detached from the train and ran onto a ger with proper accommodations in the passen
switch, where it picked up three or four ger cars. 7. SAME-QUESTION FOR JURY.
freight cars, either flat or box, conveyed them Where a carrier is operating a mixed train,
onto the main line, and coupled them to the and a passenger goes upon such train with his cars containing the passengers. When the ticket for passage, and finds no vacant seats in
engine backed up with the freight cars atthe passenger cars, or there are no printed rules
tached to make the coupling onto the pasposted in the passenger coaches in such train warning passengers not to ride in baggage cars, senger cars, it is claimed that they were it is not negligence for such passenger to take struck with such speed and force as to pitch a seat in a baggage car; and the questions of
the plaintiff off the box upon which he was whether the train was overcrowded or the rules posted, if controverted, are questions for the
seated, thereby causing certain injuries to jury, and not the court.
one of bis limbs, which developed into such a
diseased condition as to require his. leg to be rule is that an original pleading is supersedamputated; and for his suffering, loss of ed, and its effect as a pleading destroyed, by limb, and expense of sickness and treatment, filing an amended pleading which is complete he brings this action, based upon the alleged in itself and does not adopt any of the former negligence of the railway company in operat pleading by reference. 1 Enc. Pl. & Pr. C25. ing its train. The amended petition sets out in any case a distinction should be made bethe facts specifically and at length. The com tween an admission and an allegation. One pany answered by a general denial, coupled is in the nature of a confession of a fact averwith an averment, in general terms, of con red by the adverse pleader. The other is an tributory negligence on the part of the plain averment against the adverse pleader, which tiff. The plaintiff replied by general denial. must be supported by proof. The authorities The case was tried to a jury, and after all the are not at all harmonious as to the effect to evidence was introduced by both sides the be given upon the trial to superseded pleadcourt directed a verdict for the defendant ings. A few courts, and principally Califorand entered judgment of nonsuit. The plain nia, seem to have adopted the rule that a tiff brings the cause here on petition in error. pleading which has been withdrawn by an
amended pleading cannot be considered for Blakeney & Maxey and W. B. Crossan, for
any purpose on the trial; it being considered plaintiff in error. C. B. Stuart and Thos. R.
unjust to hold a party bound by statements Beman, for defendant in error.
which may have been inserted by inadvert
ence or mistake, and which he has voluntariBURFORD, C. J. (after stating the facts as ly abandoned by filing a new pleading. Barabove). We are advised that the trial court ber v. Reynolds, 33 Cal. 497; Kelly v. Mcheld, as a matter of law, that by going into Kebben, 51 Cal. 192; Mecham v. McKay, 37 the baggage compartment and riding there
. 151; Pence v. McElvy, 51 Cal. 292 ; the plaintiff was guilty of such negligence per Kentfield v. Ilays, 57 Cal. 409; Pfister et al. se as would prevent a recovery of damages. v. Wade et al., 69 Cal. 133, 10 Pac. 339. But Preliminary to a discussion of this question, such superseded pleadings may be used for there are some questions of practice which impeachment purposes, when relevant. In arose upon the trial that should be settled. re O'Conner's Estate, 118 Cal. 69, 50 Pac. 4.
The plaintiff filed an original, a first, and In Smith v. Pelott et al., 63 Hun, 632, 18 N. a second amended petition. In the original Y. Supp. 301, it was held that upon the trial petition it is a verred that the train upon the averments of the superseded pleadings which plaintiff took passage was a mixed could be considered, whether introduced in train, composed of one passenger coach, one evidence or not; but this rule has but little combination passenger and baggage coach, support. The weight of authority and betterseveral box or freight cars, and a locomotive. reasoned cases support the rule that a pleadIn the amended petitions the averment is ing, or an admission or allegation in a pleadmade that the train consisted of one com ing, notwithstanding it may have been withbination passenger and baggage car, certain drawn, stricken out, or superseded by an freight cars, and one locomotive. It is stated amended pleading, is competent in evidence, in the brief of plaintiff in error that the trial and may be introduced against the party court, in deciding the case, held that the from whom it proceeded, like any other adaverment in the original petition that there mission or declaration, subject, however, to was a passenger coach in the train was an ad explanation by the party who made it. This mission by the plaintiff against his interest, rule rests on the general principle that whatand was conclusive against him and not sub ever a party has said about his case may be ject to explanation or controversy. The orig. prored against him, and whatever writing he inal pleading was not introduced in evidence. has signed or authorized may be, if relevant, The rule stated is one that applies to the introduced against him, the weight of such pleadings upon which the case is submitted evidence to be left to the court or jury trying for trial. In the case of Lane Implement Co. the case. Abbott's Trial Brief (2d Ed.) pp. v. Lowder & Manning, 11 Okl. 61, 65 Pac, 926, 296, 297; Solomon Ry. Co. v. Jones, 30 Kan. this court, in discussing a similar question, 601, 2 Pac. 657; Reihl v. Likowski, 33 Kan. stated the law to be that "where a party to an 515, 6 Pac. 886; Jockers v. Borgman, 29 Kan. action makes solemn admissions against his 109, 44 Am. Rep. 625; Brown v. Pickard, 4 interest in a pleading, in the absence of mis Utah, 292, 9 Pac. 573, 11 Pac, 512; Kilpatrick takes on his part or on the part of his coun D. G. Co. v. Box, 13 Utah, 491, 45 Pac. 629; sel who inserted them in such pleading, a Barton v. Laws, 4 Colo. App. 212, 35 Pac. court, in passing upon the sufficiency of a 284; Schad v. Sharp, 95 Mo. 573, 8 S. W. 519; subsequent amended pleading filed by him, Stone v. Cook, 79 Ill. 424; Hall v. Woodshould take such admissions into considera ward, 30 S. C. 561, 9 S. E. 681; B. & O. & C. tion and treat them as admitted facts in the R. R. Co. v. Evarts, 112 Ind. 533, 14 N. E. case." No authority is cited supporting this 369; Ludwig v. Blackshere, 102 Iowa, 306, rule. It is probably stated too broadly, and 71 N. W. 356; Jeneau v. Stunkle, 40 Kan. is subject to some modification. The rule as 756, 20 Pac. 473; Walser v. Wear, 141 Mo. stated supra is correct as applied to an 143, 42 S. W. 928; Woodworth v. Thompson, amendment to a pleading; but the general 44 Xeb, 311, 62 N. W. 450; Strong v. Dwight,
11 Abb. Prac. X. S. (N. Y.) 319; Willis v. To car and rode. No one in charge of the traili zer, 41 S. C. 1, 21 S. E. 617; Goodbar Show either directed him into the baggage car or Co. v. Sims (Tex. Civ. App.) 43 S. W. 1965; objected to his occupying the same. There Or. R. R. & Nay. Co. v. Ducres, 1 Wash. St. were a number of other passengers occupying 195, 23 Pac. 115; Lindner v. St. Paul F. & M. the baggage car at the time. It was the cusIns. Co., 93 Wis. 526, 67 N. W. 1125; Daub tom for passengers to occupy the baggage v. Engleback, 109 Ill. 267; Folger v. Boying compartment between the stations of Teton, 67 Wis. 447, 30 N. W. 715; Vogel v. Os cumseh and Shawnee, and the conductor took born, 32 Minn. 167, 20 N. W. 129. In this fare from those in such car and made no obcase the superseded petition was not intro jections to their riding there. The plaintiff duced in evidence, and its contents were not had a ticket when he went upon the train to proper to be considered, either as admissions take passage to Shawnee, but his ticket was of record or as evidence in the case. The not taken up until after the accident. There rights of the parties should have been deter was printed upon the door between the pasmined upon the averments contained in the senger and baggage car the words "No adpleadings upon which the cause proceeded to mittance." The door was standing open, and, trial, regardless of any former pleadings, un when open, these words were not visible to one less properly offered and admitted in evi in the passenger compartment. The company dence.
had printed rules and regulations forbidding Another question of practice relates to the employés to allow passengers to ride in the question of pleading. The defendant, prior baggage car. There was no proof of any to the trial, asked for leave to file an amend rules or regulations being posted in the pased answer, in which the company alleged com senger coach or compartments for passengers pliance with the statutory regulations requir in the train. It was a controverted question ing rules and regulations to be posted in the of fact as to the number of passengers on passenger cars and the violation of such rules the train. It was a controverted question as by the plaintiff. This plea was in the nature to whether there was a passenger coach in of confession and avoidance, or by way of the train in addition to the combination car. justification. The court refused the request It was a disputed question as to whether the to file the amended answer, and the case train was crowded, and whether there were went to trial upon the issues made by the any vacant seats in the passenger compartdefendant's general denial and plea of con ments, at the time of the accident. It was a tributory negligence, which was denied by disputed question as to whether the plaintiff the plaintiff. Upon the trial the court, over could have found a seat, had he gone through the objection of the plaintiff, permitted the the train. The combination car, in which defendant to offer evidence tending to show plaintiff rode and was hurt, was the rear car that it had posted on the baggage room door in the train. There was nothing in the a warning, and that the company had issued position occupied by plaintiff in the baggage to its trainmén printed regulations, relating car that could in any manner have contributto the prevention of passengers riding upon ed to his injury, except the fact that he was the platform and in baggage cars. This evi not sitting in a seat intended for occupancy dence was not admissible under the issues by passengers. Upon the foregoing state of formed, and it was error to admit it. It has facts, what was the duty of the court? been held that, in order to entitle the carrier Several of our state courts hold to the docto make the defense that it has adopted and trine that a passenger is entitled to a seat in promulgated rules and regulations which the à passenger coach, and if he fails to occupy passenger has violated, it must plead its such seat, and occupies a place not intended rules and allege the facts which constitute for passengers, he is guilty of negligence per the defense; and we think this a sound rule se, and is precluded from recovery, if injured of practice. Sherman v. Hannibal & St. Joe while occupying such position; that he may R. R. Co., 72 Mo. 62, 37 Am. Rep. 423; Wey demand a seat, and, if the carrier fails to promouth v. Broadway, etc., R. R. Co., 142 N. vide him with one, he may retire from the Y. 681, 37 N. E. 825; Vail v. Broadway, etc., train and maintain an action against the carR. R. Co., 147 N. Y. 377, 42 N. E. 4, 30 L. R. rier for damages. This may be the safe and A. 626.
conservative rule; but it is not the practical The question as to whether the court right one. Passengers arrange for their dates of fully took the case from the jury and decid travel, and arrange for their business at their ed as a matter of law that the plaintiff was destination. They arrange for train and busiguilty of such contributory negligence as ness connections, and have a right to rely upwould prevent a recovery is the controling on the business of the carrier, when they purone in this case. It is uncontroverted that chase a ticket or engage passage, to receive the plaintiff was a passenger upon the de them at the proper time and place, to provide fendant's train. The train was a mixed train, them with necessary and usual accommodacarrying both freight and passenger cars. tions, to transport them upon usual and reg. The plaintiff went into the baggage compart
ular trains, and deliver them at the destinament of the combination coach, and there took tion their ticket calls for; and if, upon entera seat upon a box, and there remained until ing the train as a passenger, they find it he was hurt, after which he got onto a flat overcrowded and no seats unoccupied, they