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

• Decision Date: 23 June 1953
• Docket Number: No. 35628,35628
• Citation: 208 Okla. 689,258 P.2d 672
• Parties: ATCHISON, T. & S. F. RY. CO. v. HICKS.
• Court: Oklahoma Supreme Court

Page 672

258 P.2d 672

208 Okla. 689

ATCHISON, T. & S. F. RY. CO. v. HICKS.

No. 35628.

Supreme Court of Oklahoma.

June 23, 1953.

Syllabus by the Court.

1. In this action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., evidence of the plaintiff (detailed in the opinion) was such that reasonable men might draw different conclusions respecting the question of negligence and proximate cause; therefore, the issues must be left to the jury for decision.

2. The choice of conflicting versions of the way the accident happened, the decision as to whether a witness was telling the truth, the inferences to be drawn from uncontroverted as well as controverted facts, are questions for the jury.

3. In order to sustain a recovery under the Federal Employers' Liability Act, it is incumbent upon the plaintiff to prove that the defendant was negligent and that such negligence was the proximate cause in whole or in part of the accident and injury.

4. Under the Federal Employers' Liability Act, if the employer's negligence is in any part the effective cause of an employee's injury, the employer is liable; if the plaintiff's act is the sole cause, that is when the defendant's act is no part of causation, then the defendant is free from liability under the Act.

5. Where under the Federal Employers' Liability Act the evidence of the plaintiff standing alone (detailed in the opinion) presents questions of negligence and proximate cause, and where more than one rational possibility is involved on the evidentiary facts, the court should not instruct the jury as a matter of law that defendant is liable, but such issues should be left exclusively to the jury.

6. It is the duty of the trial court on its own motion to properly instruct the jury upon decisive issues made by the pleadings and the evidence introduced at the trial and the failure so to do constitutes fundamental error.

Rainey, Flynn, Green & Anderson, Oklahoma City, for plaintiff in error.

Rittenhouse, Hanson & Green, Oklahoma City, for defendant in error.

O'NEAL, Justice.

The parties will hereafter be referred to as they appeared in the lower court.

This action is founded upon the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

Upon the motion of the plaintiff below, the trial court instructed the jury that plaintiff had established liability of the defendant, thus leaving solely to the jury the question of whether the proof submitted established defendant's plea of contributory negligence; and the further question as to the amount of plaintiff's recovery.

The jury returned its verdict in favor of the plaintiff upon which judgment was rendered. The appeal is from the court's order denying defendant a new trial.

Plaintiff's amended petition substantially alleged that plaintiff, on December 22, 1950, was an employee of the defendant, The Atchison, Topeka and Santa Fe Railway Company, a corporation, and was engaged in work in the furtherance of interstate commerce. That on said date plaintiff was riding in a steam engine on defendant's railway track in Purcell, Oklahoma, when a diesel engine operated by the defendant collided with the engine in which plaintiff was riding, causing plaintiff to be injured. Plaintiff pleaded the rules of the defendant corporation with reference to movement of trains and engines, which rules in part, provide:

'* * * trains or engines using other than main track must proceed prepared to stop short of train, obstruction or switch not properly lined * * * In case of doubt or uncertainty, the safe course must be taken * * *.'

'Firemen must assist in keeping a constant lookout and must instantly give the engineman notice of any obstruction or signal they may perceive.'

That one Yost, engineman on the diesel engine, negligently violated the rules, in that although he could not see the steam engine occupied by plaintiff, he failed to reduce the speed of the diesel engine, and failed to maintain proper lookout for signals given him by his fireman helper, one 'Smilie' and thereby was unable to stop short of obstructions on his course or to stop it short of a switch which was not properly aligned for his passage. That one Smilie, fireman on the diesel engine driven by Yost, negligently violated said rules in failing to keep a lookout for obstructions under the engine's course; and failed to give instant warning to Yost of the proximity of plaintiff's steam engine or of the alignment and position of the switch point over which the steam engine was about to pass; that Yost negligently operated the diesel engine at the time and place at a speed of 15 miles per hour; and failed to keep a reasonable and proper lookout so that signals, if any, given by Smilie, might be seen and understood and so that right of way might have been given to the plaintiff's steam engine; that if Smilie gave Yost a signal requiring reduction in speed of the diesel engine, or stopping it, that Yost negligently failed to see or negligently failed to heed such signal; that the switch point over which the steam engine moved, when the diesel engine collided with it, was aligned for it and the colored signal gave warning to Yost and Smilie that plaintiff's steam engine had preempted the tracks, but that said Yost negligently failed to yield the right of way to plaintiff's engine.

Plaintiff avers that the accident resulted from the fault of the defendant which directly and proximately resulted from the accident and injuries complained of.

To the amended petition defendant filed its amended answer denying the material allegations of the petition and for affirmative defense it alleged that the accident complained of was due solely to the negligence on the part of the plaintiff Hicks, as follows:

(a) That it was the duty of the plaintiff as fireman on the steam engine at the time and place of the accident to keep a lookout for other engines upon the tracks and to warn his engineer in time to allow him to stop and avoid a collision; that plaintiff failed in these duties and that his negligence to keep a proper lookout and to warn his engineer was the sole and proximate cause of the accident.

(b) That the plaintiff knew, or in the exercise of reasonable care should have known, that the plaintiff's engineer could not see the diesel engine approaching and that plaintiff knew, or in the exercise of reasonable care should have known, that plaintiff's engineer depended upon plaintiff to keep a lookout and warn him of the approaching diesel engine in time to slow down or come to a stop to avoid the collision; that plaintiff failed to give such warning, and that his negligence in failing so to do was the sole and proximate cause of the accident.

(c) That although plaintiff had an unobstructed view of the track for several hundred feet upon which the diesel engine was approaching, he failed and neglected to warn the engineer of the steam engine upon which plaintiff was riding of the approach of the diesel engine until it was too late for his engineer to apply the brakes and to avoid the collision; that his negligence in failing to warn his engineer until it was too late to avoid the collision was the sole and proximate cause of the accident.

(d) That the negligent acts of plaintiff and the negligent failure to perform his duties as fireman, contributed to the accident, and that such acts of negligence and contributory negligence resulted in plaintiff's injuries.

In determining whether there is sufficient evidence of probative force to establish a case under the Federal Employers' Liability Act we measure it by the common-law concept of negligence. The substantive limitations upon the common-law negligence actions, as for instance those pertaining to assumption of risk and negligent fellow servants, must be enforced by the state court irrespective of the local law. The Federal Act does not however relieve the plaintiff from the burden of establishing that the defendant was negligent and that such negligence was the proximate cause in whole or in part of the accident complained of. The defense of contributory negligence, if established, does not defeat the plaintiff's recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the plaintiff. We are therefore confronted with the duty of determining whether the proof warrants a finding of fault and casualty sufficient to sustain the court's peremptory instruction to the jury that plaintiff established liability, or whether the evidence established facts of probative force warranting their submission to the jury as questions of controversial facts.

The other question raised is whether the instructions given adequately submitted the issues that were supported by proof to the jury.

A summation of the facts are these: Mr. Hicks had worked as a fireman for the Rock Island Railroad Company in 1948. In September, 1950, he was employed as a fireman by the Santa Fe Railway Company, working in the yards at Purcell, Oklahoma. On December 22, 1950, a steam engine which was headed north was backing south upon a track leading to the roundhouse; Hicks was sitting on the left side of the cab on the fireman's seat box facing, when he turned his head, in the direction in which the engine was moving. The engine as it neared the switch was moving about five miles per hour. At or near the switch point on the west of the track a light indicated that the switch was aligned for the steam engine. Hicks first observed the diesel engine as it approached the curve on the west track indicated in the Exhibits 1 and 2 of the record. As the diesel engine came into Hicks' view from behind several gondola cars, the rear end of the diesel was 150 feet from the switch point; and the rear end of the steam engine was approximately even with the switch points. In this situation Hicks' engineer asked him if the switch was aligned for the steam engine and Hicks...