## Facts

- Reuben Carpenter was struck and killed at night by a St. Louis–San Francisco Railway train near Henryetta, Oklahoma while sitting on or near the rails.
- Mary Carpenter, his widow, filed a Missouri wrongful-death action against James M. Kurn and John G. Lonsdale, trustees of the railroad, and relied on Oklahoma law because the death occurred in Oklahoma.
- Defendants claimed Carpenter was intoxicated and negligent for remaining on the track and argued the crew had no duty to take stopping action until the object ahead was actually recognized as a human being in peril.
- A main dispute concerned what the train crew could or should have seen in time to avoid the collision.
- Plaintiff offered testimony from witnesses who conducted a post-accident visibility test to estimate the distance at which a person in Carpenter’s position could be identified at night.
- The test was performed by observers who were stationary and on foot (not in the cab of a moving locomotive); the witnesses explained why they believed the differences did not defeat the usefulness of the test.
- The trial court admitted the experimental-test testimony, and the jury returned a verdict for Mrs. Carpenter.
- On an earlier appeal from the first trial, the Missouri Supreme Court held the evidence was sufficient to go to the jury but reversed for instructional error; at the retrial, the jury returned $20,000, and defendants appealed again.

## Issues

1. Whether the evidence at the retrial made a submissible case under Oklahoma’s last clear chance doctrine, given Carpenter’s conduct and defendants’ arguments about when a duty to act arose.
2. Whether the trial court erred by admitting the nighttime visibility-test testimony even though the test conditions differed from the collision conditions (observers on foot and stationary rather than riding a moving locomotive).
3. Whether the trial court erred in refusing defendants’ requested instructions that would have emphasized contributory negligence or narrowed the last clear chance submission.
4. Whether the $20,000 wrongful-death verdict was excessive.

## Decision

- The court held that, because the retrial evidence was substantially the same as on the first appeal, the prior ruling that plaintiff made a submissible case controlled (law of the case), and the case was properly submitted under Oklahoma last clear chance.
- The court held the visibility-test evidence was admissible because the test was conducted under sufficiently similar conditions to aid the jury; differences in conditions affected the weight of the evidence, not its admissibility.
- The court held the refusal of defendants’ requested instructions was not error where the instructions would have conflicted with the last clear chance theory submitted or would have treated Carpenter’s negligence as a complete bar after the point of discovered (or discoverable) peril.
- The court found the $20,000 verdict excessive by $5,000 and affirmed the judgment on condition of a $5,000 remittitur; otherwise, a new trial would be required.

## Legal Principles

- When an appellate court has already ruled that evidence is sufficient for jury submission, that ruling governs on retrial if the later evidence is not materially different (law of the case).
- Under Oklahoma’s last clear chance doctrine, a plaintiff’s earlier contributory negligence does not bar recovery if, after the defendant discovers (or should discover) the plaintiff in imminent peril, the defendant has time and ability, using ordinary care and available means, to avoid the injury but fails to do so.
- Experimental or demonstrative evidence may be admitted when the test is conducted under similar or approximately similar conditions; dissimilarities generally go to credibility and weight for the jury rather than admissibility.
- A defendant is entitled to instructions that correctly state the applicable law, but the trial court may refuse instructions that misstate last clear chance or reintroduce contributory negligence as a complete defense after the peril stage relevant to that doctrine.
- An appellate court may order remittitur as a condition to affirmance when it finds the verdict excessive but not so tainted as to require an unconditional new trial.

## Conclusion

In *Carpenter v. Kurn*, the Missouri Supreme Court affirmed (subject to remittitur) a wrongful-death judgment arising from an Oklahoma railroad fatality, holding that the case remained submissible under Oklahoma last clear chance under the law-of-the-case doctrine, that the trial court properly admitted nighttime visibility-test testimony despite differences from accident conditions, that the refusal of defendants’ proposed instructions was not error, and that the $20,000 award had to be reduced by $5,000 to stand.


Carpenter v. Kurn, 157 S.W.2d 213 (1941)