Atchison, T. & S. F. Ry. Co. v. Phillips

• Decision Date: 28 June 1932
• Docket Number: Case Number: 21801
• Citation: 158 Okla. 141,12 P.2d 908,1932 OK 486
• Court: Oklahoma Supreme Court
• Parties: ATCHISON, T. & S. F. RY. CO. v. PHILLIPS et al.

1932 OK 486

12 P.2d 908

158 Okla. 141

ATCHISON, T. & S. F. RY. CO. v. PHILLIPS et al.

Case Number: 21801

Supreme Court of Oklahoma

Decided: June 28, 1932

Syllabus

¶0 1. Negligence--Negligence not Presumed From Injury.

In this state the mere fact that an injury occurs carries with it no presumption of negligence.

2. Same--Burden of Proof on Plaintiff to Prove Negligence as Proximate Cause of Injury.

The burden is upon the plaintiff, in an action to recover damages for an injury caused by alleged negligence, to show the existence of the negligence and that the negligence was the proximate cause of the injury.

3. Railroads--Action for Personal Injuries--Requisite Proof of Negligence of Employees.

A railroad company will not be held liable for personal injuries alleged to have been caused by the negligent acts of its employees, where there is no positive evidence of negligence or of facts from which negligence can be reasonably inferred.

4. Same -- Conjecture or Speculation not Proper Basis for Judgment.

Neither conjecture nor speculation may form a basis for a judgment.

5. Same -- When Demurrer to Plaintiff's Evidence Should Be Sustained.

A demurrer to the plaintiff's evidence in a personal injury action ought to be sustained, unless it is reasonably apparent from the evidence that the injury sustained by the plaintiff was caused by some wrongful act of the defendant in violation of a legal duty owing to the plaintiff.

6. Same -- Error to Submit Issue to Jury Where Evidence of Negligence Fails.

Where there is no evidence reasonably tending to show that the defendant was guilty of negligence, it is error for the trial court to submit that issue to the jury.

7. Negligence--Essential Elements of 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.

8. Railroads--Injury to Person on Track--Evidence of Negligence -- Existence of Well-Worn Path Across Track Held Immaterial Where Injured Person not Shown to Be at Path Crossing.

In an action involving a question of negligence, the existence of a well-worn path running diagonally across the railroad track is immaterial, where it is shown that the injury resulted from the injured person being upon the track at a place other than that at which the path crossed the track.

9. Same -- Duty to Trespasser Sitting on Track.

If a pedestrian sits on a railroad track, he becomes a trespasser to whom the railroad company owes no duty other than not to wantonly or willfully injure him.

10. Negligence--Scope of Doctrine of Last Clear Chance.

The doctrine of last clear chance does not apply in a case unless the danger was actually discovered. The theory of the doctrine is based upon conduct subsequent to the discovery of the danger. The duty required of the defendant, after discovering the danger, is that of ordinary care, under the circumstances there and then present.

11. Same -- Proof Required to Establish Liability.

To establish liability under the doctrine of the last clear chance it is necessary to prove: (1) That the person was in a place of danger: (2) that he was seen in such place of danger by the owner or an agent or servant of the owner; and (3) a failure thereafter to use ordinary care to avert injury.

12. Same--Trial -- Demurrer to Plaintiff's Evidence Should Be Sustained Where Primary Negligence not Shown.

A demurrer admits the truth of all the evidence introduced and of all the facts which it tends to establish, as well as every fair and reasonable inference, and should be overruled unless the evidence and all inference which a jury could reasonably draw from it are insufficient to support a verdict for plaintiff. But where the evidence in an action for personal injuries fails entirely to show primary negligence, the court should sustain the demurrer and instruct a verdict in favor of the defendant.

13. Railroads--Action for Negligent Death of Child on Track -- Judgment for Plaintiffs not Sustained.

Record examined, and held: The judgment of the trial court is contrary to the law and the evidence.

Appeal from District Court, Oklahoma County; Wyley Jones, Judge.

Action by C. D. and Della Phillips against the Atchison, Topeka & Santa Fe Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded, with directions.

Rainey, Flynn, Green & Anderson and John Roemer, for plaintiff in error.

O. A. Cargill and J. L. Gowdy, for defendants in error.

ANDREWS, J.

¶1 This is an appeal from a judgment of the district court of Oklahoma county in favor of the defendants in error, who were the plaintiffs in the trial court, against the plaintiff in error, who was the defendant in the trial court. The judgment was for damages for the wrongful death of an eight year old child of the plaintiffs, which was alleged to have been caused by the negligence of the employees of the defendant.

¶2 We quote from the petition the material allegations as to negligence, as follows:

"(3) Plaintiffs allege that the defendant through its engineer and fireman in operating said train was careless and negligent in the following particulars, to wit:

"That they did carelessly and negligently operate said passenger train at said time and place at a high, dangerous and excessive rate of speed and in violation of slow orders arranged and prepared at said time and place for the protection of persons who were wont to be about the track and right of way of said defendant railway company and especially plaintiffs' infant child, Cecil Phillips, who was then and there at said place hereinbefore described, and that said defendant through its engineer and fireman in charge of said train as aforesaid did carelessly and negligently fail to have and keep said passenger train under reasonable control at its approach to the entrance of said slow signal territory along said right of way as hereinbefore set out. That the said engineer and fireman in charge of said passenger train carelessly and negligently failed to keep a reasonable and diligent lookout ahead consistent with the safety of persons at said time and place and did carelessly and negligently fail to sound any bell or whistle and give any signal or warning as they approached the place hereinbefore described and alleged.

"(4) Plaintiffs further allege that the defendant's engineer and fireman carelessly and negligently failed to stop said train, which they could have done in the exercise of ordinary care with the use of the means at their command after they saw the plaintiff's infant son, Cecil Phillips, in a position of peril upon said railway tracks hereinbefore alleged."

¶3 The answer consisted of a general denial, a plea of contributory negligence on the part of the plaintiffs, a plea that the child was a trespasser on the property of the defendant, and a plea of a settlement and release between the plaintiffs and the defendant. The plaintiffs, by reply, denied the plea of contributory negligence and that the child was a trespasser upon the defendant's property, and alleged fraud in the procuring of the release pleaded by the defendant. There was no allegation of any willful or intentional wrong and there is nothing in the record to show such a wrong. We cannot assume that either the fireman or the engineer intended to injure the child.

¶4 In this state the mere fact that an injury occurs carries with it no presumption of negligence. Chicago, R. I. & P. Ry. Co. v. Tate, 57 Okla. 215, 156 P. 1182. The burden is upon the plaintiff, in an action to recover damages for an injury caused by alleged negligence, to show the existence of the negligence and that the negligence was the proximate cause of the injury. Star v. Brumley, 129 Okla. 134, 263 P. 1086. A railroad company will not be held liable for personal injuries alleged to have been caused by the negligent acts of its employees, where there is no positive evidence of negligence or of facts from which negligence can be reasonably inferred. Chicago, R. I. & P. Ry. Co. v. Pedigo, 102 Okla. 72, 226 P. 72. Neither conjecture nor speculation may form a basis for a judgment. Eastern Torpedo of Ohio Co. v. Shelts et al., 121 Okla. 129, 247 P. 974.

¶5 At the conclusion of the plaintiffs' evidence, the defendant demurred thereto, and at the conclusion of all of the evidence, the defendant requested the court to instruct the jury to return a verdict in favor of the defendant. Those motions were overruled. The defendant contends that there was error on the part of the trial court in overruling them. That a demurrer to the plaintiffs' evidence in a personal injury action ought to be sustained, unless it is reasonably apparent from the evidence that the injury sustained by the plaintiff was caused by some wrongful act of the defendant in violation of a legal duty owing to the plaintiff, is well settled in this state, and it is equally well settled that where there is no evidence reasonably tending to show that the defendant was guilty of negligence, it is error for the trial court to submit that issue to the jury. Choctaw, O. & W. Ry. Co. v. Wilker, 16 Okla. 384, 84 P. 1086; Oklahoma Gas & Electric Co. v. Lukert, 16 Okla. 397, 84 P. 1076; Midland Valley Ry. Co. v. Graney, 77 Okla. 54, 185 P. 1088; Smith et al. v. Clark, 125 Okla. 18, 256 P. 36; Lancaster v. St. Louis & S. F. Ry. Co., 128 Okla. 176, 261 P. 960; White Line Cab & Baggage Co. v. Waterman, 150 Okla. 277, 3 P.2d 839, and Roy v. St. Louis-S. F. Ry. Co., 153 Okla. 270, 4 P.2d 1038.

¶6 Those rules must be applied to the facts shown by the record in this case under the rule adopted by this court as to what constitutes actionable negligence. That rule is:

"To constitute actionable negligence, where the wrong is not willful and

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