Martin Woolwine v. C., R.I. P. Ry. Co.

10 Citing cases

  1. G., H. S.A. Ry. Co. v. Matzdorf

    102 Tex. 42 (Tex. 1908)   Cited 15 times

    Baker, Botts, Parker Garwood, Newton Ward, and Teagarden Teagarden, for plaintiff in error. — There must be some mutuality of interest in the purpose of the visit between the owner of the premises and the visitor, if the visitor be not invited there, to support a legal right to be there, and to raise the correlative duty of ordinary care to maintain safe premises; otherwise he is a mere licensee and assumes all risks arising out of want of ordinary care respecting the condition of the premises, Galveston Oil Co. v. Morton, 70 Tex. 400; Post v. Texas P. Ry. (Texas Civ. App.), 23 S.W. 708; Burbank v. Railway, 42 La. Ann., 1158; Woolwine v. Railway, 36 W. Va. 329; Gillis v. Railway, 59 Pa. St., 129; Railway v. Bingham, 29 Ohio St. 364; Vanderbeck v. Hendry, 34 N.J.L. 467; Sweeney v. Railway, 10 Allen, 374; Railway v. Fairbairn, 48 Ark. 491; 2 Jaggard on Torts, 889; 3 Elliott on Railroads, 1948, 1950; Patterson's Railway Accident Law, p. 176, sec. 184; Negligence of Imposed Duties to Passengers, Ray, pp. 25, 109, 110. While the bare licensee assumes all risks arising out of want of ordinary care respecting the condition of the premises at the time he enters, the rule does not apply to subsequent negligence by which injury is directly inflicted upon him from other sources.

  2. Salyer v. Central National Bank

    312 P.2d 458 (Okla. 1957)   Cited 2 times

    "The verdict was a general one for plaintiff, and necessarily determined, primarily, that there was no breach of warranty. There being no such breach, the question of the measure of the damages alleged to have been occasioned thereby was never reached by the jury and could not have been properly considered by it. Puls v. Hornbeck, 24 Okla. 288, 103 P. 665, 29 L.R.A., N.S., 202, 138 Am.St.Rep. 883; Martin v. Chicago, R.I. P. Ry. Co., 7 Okla. 452, 54 P. 696; Wertz v. Barnard, 32 Okla. 426, 122 P. 649; Toepfer v. Sterr, 156 Wis. 226, 145 N.W. 970; Malcolm v. Sims-Thompson M.C. Co., Tex.Civ. App., 164 S.W. 924; Gullion v. Traver, 64 Neb. 51, 89 N.W. 404; Wilkes v. Wolback, 30 Kan. 375, 2 P. 508; Zimmerman v. Denver, etc., Co. 18 Colo. App. 480, 72 P. 607; Wilhelm v. Donegan, 143 Cal. 50, 76 P. 713; Conant v. Jones, 120 Ga. 568, 48 S.E. 234; Gallimore v. Brewer, Ky., 57 S.W. 253." [ 46 Okla. 762, 149 P. 871.

  3. Perryman v. Lumber Co.

    113 W. Va. 848 (W. Va. 1933)   Cited 3 times

    "The gist of the liability," in such cases, said the supreme court of Massachusetts in the leading case, Sweeny v. R. R. Co., 87 Am. Dec. 644, 648, "consists in the fact that the person injured did not act merely for his own convenience and pleasure and from motives to which no act or sign of the owner or occupant contributed, but that he entered the premises because he was led to believe that they were intended to be used by visitors * * * and that such use was not only acquiesced in by the owner or person in possession and control of the premises, but that it was in accordance with the intention and design with which the wayor place was adopted and prepared or allowed to be used." (Italics ours) The Sweeny case was approved and applied in our own case of Woolwine v. Ry. Co., 36 W. Va. 329, 335, 15 S.E. 81 and Johnson v. Fuel Co., 166 S.E. 118, 119-120. An announcement of a public speaking or public entertainment is not taken as a general invitation to the public to occupy the speakers' stand or the place where the entertainers perform.

  4. Williams v. Slaughter

    15 P.2d 27 (Okla. 1932)   Cited 1 times

    Plaintiff further contends that the court erred in refusing a certain instruction requested by her. This instruction relates to the measure of damages, and the jury having found against plaintiff as to the existence of the marriage agreement, the question of the measure of damages becomes immaterial and the judgment will not be reversed because of the refusal of the court to give the same. Martin v. C., R.I. P. Ry. 7 Okla. 452, 54 P. 696; McKelvy v. Choctaw Cotton Oil Co., 72 Okla. 74, 178 P. 882. In the latter case the court held that where, in an action for breach of the contract, the jury finds in favor of defendant on the issue as to whether there was a breach, the giving of an erroneous instruction as to the measure of damages does not constitute reversible error.

  5. Cherry Bros. Trading Co. v. Rock Island Implement Co.

    89 Okla. 201 (Okla. 1923)   Cited 6 times

    There being no such breach, the question of the measure of the damages alleged to have been occasioned thereby was never reached by the jury, and could not have been property considered by it." Puls v. Hornbeck, 24 Okla. 288, 103 P. 665, 29 L. R. A. (N. S.) 202, 138 Am. St. Rep. 883; Martin v. C., R.I. P. Ry. Co., 7 Okla. 452, 54 P. 696; Wertz v. Barnard, 32 Okla. 426, 122 P. 649; Toepfer v. Sterr, 156 Wis. 226, 145 N.W. 970; Malcolm v. Sims-Thompson M. C. Co. (Tex. Civ. App.) 164 S.W. 924. Feeling that there is no reversible error in the record and that substantial justice has been done, the judgment of the trial court is affirmed.

  6. McKelvy v. Choctaw Cotton Oil Co.

    178 P. 882 (Okla. 1919)   Cited 4 times

    Error is also assigned upon the giving of instruction No. 4 1/2, in which the court instructed the jury that, if they found plaintiff was wrongfully discharged, it then became plaintiff's duty to seek other employment, and his measure of recovery would be the difference between what he would have received had he not been discharged and what he could have received under his new employment. This instruction was not a correct statement of the true rule (Ditzler Dry Goods Co. v. Sanders, supra; Sharpless Separator Co. v. Gray, supra); but, the jury having found in favor of defendant upon the issue of wrongful discharge, an erroneous instruction as to the measure of damages will not justify a reversal of the cause (Martin et al. v. C., R.I. P. Ry. Co., 7 Okla. 452, 54 P. 696; Wertz v. Barnard, 32 Okla. 426, 122 P. 649; Howard v. Rose Tp. Payne County et al., 37 Okla. 153, 131 P. 683; Farmers' Product Supply Co. v. Bond, 61 Okla. 244, 161 P. 181). There is no merit in the other contentions.

  7. Farmers Product Supply Co. v. Bond

    161 P. 181 (Okla. 1916)   Cited 9 times

    The acts of the lower court, complained of, and pertaining to the agency issue, therefore were without harm to the rights of the plaintiff; and if, in this connection, there be errors, they are without prejudice. Dunham v. Holloway, 3 Okla. 244, 41 P. 140; Wertz v. Barnard, 32 Okla. 426, 122 P. 649; Howard v. Rose Township, 372 Okla. 153, 131 P. 683; Martin v. C., R.I. P. R., 7 Okla. 452, 54 P. 696; Eddy v. La Fayette, 163 U.S. 456, 16 Sup. Ct. 1082, 41 L.Ed. 225. Plaintiff in error contends that there was misconduct in defendant and his counsel in the manner of asking certain questions of one Thom, a witness for plaintiff; that the questions so asked were insinuating and in sulting to the witness, and tended unduly to discredit him before the jury; and that the court erred in its control of this examination.

  8. Dunn v. Modern Foundry Machine Co.

    151 P. 893 (Okla. 1915)   Cited 9 times

    "A judgment will not be reversed on account of errors committed upon the trial which do not affect the substantial rights of the party appealing." ( Martin v. C., R.I. P. Ry. Co., 7 Okla. 452, 54 P. 696; Alton Dawson Mer. Co. v. Staten, 19 Okla. 252, 91 P. 892.) The controversy of counsel over the amendment of the petition seems to have been settled by the trial court, and the matter of amendment of pleadings is entirely within the discretion of that court, so long as it is permitted in furtherance of justice.

  9. People's Ice Fuel Co. v. Serat

    46 Okla. 762 (Okla. 1915)   Cited 3 times

    The verdict was a general one for plaintiff, and necessarily determined primarily, that there was no breach of warranty. There being no such breach, the question of the measure of the damages alleged to have been occasioned thereby was never reached by the jury and could not have been properly considered by it. Puls v. Hornbeck, 24 Okla. 288, 103 P. 665, 29 L.R.A. (N.S.) 202, 138 Am. St. Rep. 883; Martin v. C., R.I. P. Ry., 7 Okla. 452, 54 P. 696; Wertz v. Barnard, 32 Okla. 426, 122 P. 649; Toepfer v. Sterr, 156 Wis. 226, 145 N.W. 970; Malcolm v. Sims-Thompson M.C. Co. (Tex. Civ. App.) 164 S.W. 924; Gullion v. Traver, 64 Neb. 51, 89 N.W. 404; Wilkes v. Wolback, 30 Kan. 375, 2 P. 508; Zimmerman v. Denver, etc., Co., 18 Colo. App. 480, 72 P. 607; Wilhelm v. Donegan, 143 Cal. 50, 76 P. 713; Conant v. Jones, 120 Ga. 568, 48 S.E. 234; Gallimore v. Brewer (Ky.) 57 S.W. 253. On the whole case, we are convinced that the judgment of the trial court is right, and should therefore be affirmed.

  10. Bleecker v. Miller

    138 P. 809 (Okla. 1914)   Cited 29 times

    We do not believe that the substantial rights of the defendant were affected by the giving of instruction No. 11. It has been repeatedly held that a judgment would not be reversed on account of errors committed upon the trial which do not affect the substantial rights of the party appealing. See Martin v. C., R.I. P., 7 Okla. 452, 54 P. 696; Alton-Dawson Mercantile Co. v. Staton, 19 Okla. 252, 91 P. 892; Purcell Wholesale Grocery Co. v. Bryant, 6 Ind. T. 78, 89 S.W. 662; St. Louis S. F. v. Rushing, 31 Okla. 231, 120 P. 973. Defendant contends that the trial court erred in giving to the jury instructions Nos. 4, 5, and 6, for the reason that the same do not tell the jury that it is necessary for plaintiffs to have procured or tendered to defendant an enforceable contract, executed by the proposed purchaser.