Buss v. Chicago, R.I. & P. Ry. Co.
| Citation | 186 P. 729,77 Okla. 80,1920 OK 2 |
| Decision Date | 06 January 1920 |
| Docket Number | 10277. |
| Parties | BUSS v. CHICAGO, R.I. & P. RY. CO. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
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 inferences which a jury could reasonably draw from it are insufficient to support a verdict for plaintiff.
But where the evidence fails entirely to show primary negligence the court should sustain the demurrer and instruct a verdict in favor of the defendant.
In an action for damages sustained by an employé, the fact of accident resulting in injury carries with it no presumption of negligence on the part of the employer, but such negligence is an affirmative fact to be established by the evidence.
The general rule is that no duty rests upon the railroad company to give warning to the section hands working along the right of way as to the movement of its trains. It is where the danger is an extraordinary one, that is, a danger not incident to the service, and the employer has knowledge of such danger, that he is guilty of negligence if he fails to warn the employé. Where the danger is obvious to a person of ordinary intelligence, and one that can be known and appreciated by a person who exercises ordinary prudence and care, or where it is not an extraordinary peril, but one incident to the service, there is no duty to give warning to employés, persons who have reached the years of discretion.
The last clear chance rule does not apply where defendant does not discover the injured person's exposure to the danger in time to prevent the accident.
Error from District Court, Stephens County; Cham. Jones, Judge.
Action for damages by Marie Buss, administratrix of John Buss deceased, against the Chicago, Rock Island & Pacific Railway Company. Judgment for defendant on demurrer to plaintiff's evidence and plaintiff brings error. Affirmed.
Ledbetter Stuart & Bell, of Oklahoma City, and A. G. Morrison, of El Reno, for plaintiff in error.
R. J Roberts and C. O. Blake, both of El Reno, and Raymond A. Tolbert, of Hobart, for defendant in error.
John Buss, while working as a section hand for the railway company, was walking along the east side of the main track and, in attempting to cross the track in front of one of defendant's passenger trains, was struck by the engine, receiving injuries from which he died. The trial court sustained a demurrer to the evidence offered on the part of plaintiff, and the question for determination is whether there was sufficient proof of primary negligence on the part of defendant to take the case to the jury.
The allegations of negligence charge that the passenger train was being run at a dangerous and unusual speed; that the engineer failed to give a proper warning, either by ringing the bell or by blowing the whistle, and failed to exercise proper care after discovering deceased in a dangerous position. From the evidence offered to sustain these allegations it appears the train was running not to exceed 15 miles per hour; that Buss, walking south along the right of way, in the direction the train was moving, turned as though to look back, and stepped across the west rail of the track immediately in front of the approaching train, and, as one of the witnesses said, "was instantly hit by the engine."
A demurrer admits the truth of 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 the inferences which a jury could reasonably draw from it are insufficient to support a verdict. But where the evidence fails entirely to show primary negligence, the...
To continue reading
Request your trial