Atchison, T. & S. F. Ry. Co. v. Howard
| Decision Date | 19 September 1939 |
| Docket Number | Case Number: 28889 |
| Citation | 98 P.2d 914,186 Okla. 446,1939 OK 314 |
| Parties | ATCHISON, T. & S. F. Ry. Co. v. HOWARD, Adm'r. |
| Court | Oklahoma Supreme Court |
¶0 1. RAILROADS--Duty of care owed trespassers on tracks.
A railroad company in the operation of its trains, while it does not owe an unauthorized person upon its tracks the duty to use ordinary care to discover such person on its tracks or to discover his dangerous position, must, after the discovery of his peril, use ordinary care to avoid doing him injury.
2. NEGLIGENCE--Three essential elements of actionable negligence.
To constitute actionable negligence, where the wrong is not willful and intentional, three essential elements are necessary: (1) The existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) failure of the defendant to perform that duty; and (3) injury to the plaintiff resulting from such failure.
3. RAILROADS--Duty of care owed trespassers on property--Proof required to establish liability for injuries under doctrine of last clear chance.
There is no obligation or duty resting upon the railroad company, its agents, servants and employees, to keep a lookout for trespassers on its property, nor to assume or anticipate that a trespasser, for his own pleasure or convenience, will assume a position of peril thereon; and to establish liability under the doctrine of the last clear chance, it is necessary to prove: (1) That the trespasser was in a place of danger; (2) that he was seen in such place of danger by the owner or agent or servant of the owner; and (3) a failure thereafter to use ordinary care to avert injury. Gypsy Oil Co. v. Ginn, 152 Okla. 30, 3 P.2d 714; Oklahoma Ry. Co. v. Overton, 158 Okla. 96, 12 P.2d 537; A., T. & S. F. Ry. Co. v. Phillips, 158 Okla. 141, 12 P.2d 908.
4. NEGLIGENCE--Last clear chance rule.
The last clear chance rule does not apply where defendant does not discover the injured person's exposure to danger in time to prevent the accident. Buss v. Chicago, R. I. & P. Ry. Co., 77 Okla. 80, 186 P. 729; Shuck v. Davis, 110 Okla. 196, 237 P. 95.
5. RAILROADS--Nonliability for accidental death of person on track absent proof of negligence.
A railroad company will not be liable for an accidental death alleged to have been caused by the negligence of its employees in the operation of one of its trains where there is a total lack of positive evidence of negligence, or of facts and circumstances from which such negligence can be inferred.
6. SAME--Negligence not presumed from mere fact deceased was killed--When demurrer to plaintiff's evidence or motion for directed verdict properly sustained.
A demurrer to the plaintiff's evidence, or a motion for directed verdict, should be sustained unless it is reasonably apparent from the evidence that the death was caused by some wrongful act of the defendant's agent or servants in violation of a legal duty owing to the decedent, and the mere fact that the deceased was killed carries with it no presumption of negligence.
7. SAME--APPEAL AND ERROR--Reversal with directions to enter judgment for defendant where court improperly refused to direct verdict for defendant.
Where, in an action involving such a question of negligence, there is a failure to make out a case of primary negligence, and where the trial court should have directed a verdict for the defendant, but refused to do so, and it clearly appears that the plaintiff cannot better his case on another trial, this court will reverse the judgment and remand the cause, with directions to enter judgment for the defendant.
Appeal from District Court, Pawnee County; Prentiss E. Rowe, Judge.
Action by H. V. Howard, administrator of estate of Robert Wright, against the Atchison, Topeka & Santa Fe Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions to vacate judgment and dismiss action.
Rainey, Flynn, Green & Anderson, Hugh F. Owens, and McCollum & McCollum, for plaintiff in error.
Bailey E. Bell and Emerson R. Phillips, for defendants in error.
¶1 The plaintiff recovered a verdict and judgment against the defendant railway company in the sum of $2,000, for the alleged wrongful death of plaintiff's decedent, Robert Wright, and the defendant, to reverse said judgment, brings this appeal. The parties are referred to herein as they appeared in the trial court.
¶2 The only question involved in this case is whether the plaintiff has shown that the defendant, under the circumstances, was guilty of actionable negligence.
¶3 It is alleged in the petition that the deceased, Robert Wright, had lived in the vicinity of Ralston with his father and mother for many years, and that he and many other persons had for a number of years walked up and down the railroad track from the town of Fairfax to Ralston, a distance of five or six miles, and had used the railroad bridge for the purpose of crossing the Arkansas river between the two towns, and that for many years there had been a beaten and much used path and trail leading from one of said towns to the other, in and upon said railroad tracks, and that for many years the public generally had used the same very extensively, with the knowledge and consent of the defendant; that on or about the 11th day of July, 1937, the deceased, Robert Wright, was in the town of Fairfax and started walking down the track to the town of Ralston, where he resided at the time; that it was early in the morning, and that the said deceased walked from the town of Fairfax on the tracks of the defendant company until he had crossed the bridge over the Arkansas river and was only a little more than a mile north of the town of Ralston when he was fatally injured; that there was a strong wind from the south, and that the deceased, Robert Wright, had crossed the bridge and was walking in a southerly direction in the middle of the railroad tracks, facing said wind; that the defendant, its agents, servants, and employees were operating a train in a careless and reckless manner and in violation of the laws of the state of Oklahoma, and that said train was coasting along with the motor cut off and making little or no noise, and that the defendant, its agents, servants, and employees negligently failed to ring the bell or sound the whistle for the grade crossing ahead, and failed and neglected to ring the bell and sound the whistle at the whistling post approximately 250 yards north of where the deceased was injured; and that the defendant, its agents, servants, and employees negligently failed to keep a lookout for persons who might be on the tracks, and that said train slipped along quickly at a dangerous rate of speed, giving no alarm whatsoever; that the deceased continued to walk in a southerly direction, and that the defendant, its agents, servants, and employees were negligent and careless in not keeping a proper lookout and observing said deceased in a position of peril, and in not stopping said train when they did see the deceased on said tracks, or should have seen him there if they had been keeping a proper lookout; that after they saw him in this position of peril, or should have seen him by the exercise of proper care, they operated the train at the same rate of speed, and failed and neglected to ring the bell, blow the whistle, or give any other warning until they ran over him, crushing and mangling his body, head, and limbs until he died as a result of said injury; that the defendant, its agents, servants, and employees all knew, or should have known by the exercise of ordinary care, that said railway right of way and tracks were at the time, and had been for many years in the past, used excessively by pedestrians, and that they owed the deceased the additional duty of keeping a sharp lookout by reason of such knowledge.
¶4 The defendant in its answer alleges that the said Robert Wright, on said date, broke, wandered, and entered onto the right of way of the railway company near the town of Ralston without the knowledge, authority, or consent of the employees of this defendant; that he was a man of mature years, in possession of his faculties of perception, and that while upon the right of way of this defendant without the knowledge or consent of the employees of the defendant, the said Robert Wright was a trespasser to whom the defendant owed no duty other than that of not wantonly injuring him after discovering him in a position of peril; that the said Robert Wright, being a trespasser upon the right of way of defendant, had placed himself in a position of peril in that he was lying prostrate upon the tracks of the railway company, and as a result thereof the operator of the train was unable to discover his position of peril in sufficient time to stop and thus avoid the accident; and that the deceased on account thereof was guilty of contributory negligence which was the direct and proximate cause of decedent's death.
¶5 The defendant contends: (1) That the plaintiff failed to establish at the trial the allegations of negligence contained in his petition; (2) that there is no evidence of violation of a legal duty owing to the plaintiff by the defendant; and (3) that the doctrine of the last clear chance does not apply under the facts in this case.
¶6 The foregoing contentions necessarily require an examination of the record to determine the sufficiency of the evidence to sustain the verdict and judgment appealed from. In passing upon the sufficiency of the evidence we are guided by the long established rule set out in the case of Atchison, T. & S. F. Ry. Co. v. Hunter, 173 Okla. 415, 49 P.2d 86, in language as follows:
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