SOUTHWEST MISSOURI R. CO. v. DUNCAN

SOUTHWEST MISSOURI R. CO. v. DUNCAN
1929 OK 498
282 P. 331
139 Okla. 292
Case Number: 18569
Decided: 11/19/1929
Supreme Court of Oklahoma

SOUTHWEST MISSOURI R. CO.
v.
DUNCAN.

Syllabus

¶0 1, 2, 3. Railroads--Negligence--Contributory Negligence--Last Clear Chance--Instructions.
Paragraphs one, two and three of the syllabus in the Southwest Missouri Railroad Company, a Corporation, v. Junior Duncan, No. 18568, this day decided, 139 Okla. 287, 282 P. 327, is adopted as the syllabus in this case.

Commissioners' Opinion, Division No. 1.

Error from District Court, Ottawa County; Enloe V. Vernor, Assigned Judge.

Action by Rose Duncan against the Southwest Missouri Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

McReynolds, McReynolds & Flannigan, for plaintiff in error.
Frank Nesbit, for defendant in error.

JEFFREY, C.

¶1 Rose Duncan brought this suit in the district court of Ottawa county, Okla., against the Southwest Missouri Railroad Company to recover damages for personal injuries received at a highway crossing near Galena in the state of Kansas on the 29th day of June, 1926. On the trial, a verdict and judgment were rendered in her favor, and the defendant has appealed. This is a companion case to that of Southwest Missouri R. Co. v. Junior Duncan, a minor, by Rose Duncan, his mother and next friend, No. 18568, 139 Okla. 287, 282 P. 327. Rose Duncan and her son, Junior Duncan, were injured when the automobile in which they were riding as guests collided with defendant's electric car at a highway crossing about one-half mile southeast of Galena, Kan. When the testimony in the case of Junior Duncan was completed, it was stipulated in the trial court that the evidence may be submitted to the jury as the evidence of Rose Duncan against the railway company, except as to the nature and extent of her injury, and the two causes submitted under separate instructions. Evidence was then offered on the nature and extent of the injuries received by Rose Duncan and separate instructions were given the jury in each case. Upon appeal to this court counsel for the respective parties by permission of the court obtained leave to file the same briefs in the two cases. The evidence and the instructions complained of on appeal are the same in each case, the only difference between the two cases being that in the junior Duncan Case an additional assignment of error is made that the trial court erred in refusing to give a requested instruction, which has no application to the Rose Duncan Case. The opinion in the Junior Duncan Case is decisive of every question presented and argued in this case, and a restatement of the questions and a discussion thereof are unnecessary. On authority of the holding in Southwest Missouri Railway Company v. Junior Duncan, a minor, by Rose Duncan, his next friend, No. 18568, this day decided, the judgment of the trial court in this case is hereby affirmed.