Chi., R.I. & P. R. Co. v. Larmon, Case Number: 23752
| Decision Date | 26 February 1935 |
| Docket Number | Case Number: 23752 |
| Citation | 172 Okla. 461,1935 OK 173,45 P.2d 76 |
| Court | Oklahoma Supreme Court |
| Parties | CHICAGO, R.I. & P. R. CO. v. LARMON |
¶0 1. Negligence - Personal Injury Action - Question of Law Whether Evidence of Negligence Sufficient to Submit Case to Jury.
In an action for damages for personal injuries, the question of whether there is any competent evidence of primary negligence sufficient to submit the case to the jury is one of law for the court.
2. Carriers - Action by Passenger Against Railroad for Personal Injuries - Failure of Proof of Negligence Warranting Directed Verdict for Defendant.
In an action for damages against a railroad company by a passenger for hire for personal injuries alleged to have been caused by a sudden, unusual, violent, and unexpected lurch or jerk of a passenger train held, that while movements of the train undoubtedly played a part in plaintiff's accident, defendant's liability arose only if such movements were unusual or extraordinary, and where there is no proof of any unusual or extraordinary lurch or jerk, except the testimony of the plaintiff that the train gave "a main jerk and jerked me sideways and I went out on the left side of the train'', plaintiff fails to make out a prima facie case of negligence, and the court should have instructed a verdict for defendant.
3. Negligence - Negligence not Presumed From Fact of Injury.
Mere fact of injury raises no presumption of negligence.
Appeal from District Court, Johnston County; Porter Newman, Judge.
Action by Andrew Larmon against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.
W.R. Bleakmore, John Barry, W.L. Farmer, and Robert E. Lee, for plaintiff in error.
Reuel W. Little, Utterback & Stinson, and Priscilla W. Utterback, for defendant in error.
¶1 The parties will be referred to as they appeared in the court below.
¶2 Plaintiff's petition alleges that while riding as a passenger for hire on one of defendant's passenger trains near Haileyville, Okla., on or about September 19, 1927, he received the injuries of which he complains due to defendant's negligence in the following particulars: That the track of the defendant at the point where plaintiff was injured was carelessly and negligently constructed and maintained in that the ties upon which the rail rested were uneven, rotten, broken, and weakened to such an extent that they would not and did not sustain the train upon which plaintiff was riding so that it would move evenly without unusual jars or jolts along the path of said road, and that the rails upon said ties were loosely, carelessly, and negligently fastened to said ties, and loosely fastened to each other, and the track at that point was in such bad state of repair that it was not safe for trains to be moved over it, and that as a result thereof when the train reached said point it gave a sudden, unusual, violent, and unexpected lurch caused by the giving away of the ties, rails, and other parts of the roadbed, of such violence as to overbalance plaintiff and throw him from the platform of the train violently to the ground upon the right of way of the defendant; that the train was being run at a high, excessive, and unusual rate of speed and greater than the condition of the roadbed would allow without sudden, violent, and unusual lurches; that defendant was also negligent in that it allowed and permitted the vestibule door between the coaches to be and remain open, or to be so fastened that a sudden, violent, and unexpected lurch would cause the same to be thrown open and defendant thrown out of said coach and upon the ground, and that defendant failed and neglected to take proper care of plaintiff after he had received the injuries complained of.
¶3 Plaintiff's petition was filed more than two years after his cause of action accrued, and to negative the statute of limitations he alleged that within two years after said injuries were sustained he filed suit against defendant setting forth the matters aforesaid in the district court of Johnston county, Okla., and within two years after said injury filed an amended petition, upon the filing of which the cause was on petition of the defendant removed to the District Court of the United States for the Eastern District of Oklahoma, where, after the evidence had been submitted by both plaintiff and defendant, the court granted plaintiff a nonsuit, and that the cause is not barred by the statute of limitations.
¶4 Defendant answered denying generally the allegations of plaintiff's petition, pleaded contributory negligence, and other defenses not here material.
¶5 Upon conclusion of all the evidence, defendant moved for a directed verdict, which was denied and exceptions saved.
¶6 It is contended by defendant that there is no competent evidence of negligence on its part. If this contention is sound, it follows that there was nothing to submit to the jury, and the court should have sustained defendant's motion for a directed verdict in its favor.
¶7 Whether there is any competent evidence of primary negligence sufficient to submit the case to the jury is a question of law for the court. M., K. & T. R. Co. v. Sowards, 165 Okla. 214, 25 P.2d 641; Gulf, C. & S. F. Ry. Co. v. Nail, 156 Okla. 294, 10 P.2d 668; City of Tulsa v. Harman, 148 Okla. 117, 299 P. 462; Chicago, R.I. & P. Ry. Co. v. Perkins, 115 Okla. 233, 242 P. 535; Oklahoma Union Ry. Co. v. Houk, 109 Okla. 187, 235 P. 499; Phillips v. Classen, 93 Okla. 82, 219 P. 708. In order to determine this question, it is necessary to review the record.
¶8 Plaintiff testified that he purchased a ticket at Chattanooga, Tenn., to Mannsville, Okla.; that he changed trains at Memphis where he boarded one of defendant's passenger trains; that while traveling on this train he attempted to enter a toilet on the coach in which he was riding, but finding the door locked returned to his seat and sat down for a while; that he again attempted to enter the toilet and finding the door locked started to hunt another toilet in one of the other coaches and "started across them steps between the boxes" (meaning coaches) and the train gave "a main jerk and jerked me sideways and I went out on the left side of the train about midnight." Plaintiff further testified that he had been many miles on trains; that he had been to Atlanta a hundred times, but knew nothing about vestibules and that all he knew were passenger cars from freight cars.
¶9 Testimony of two witnesses was introduced by plaintiff tending to prove that some of the railroad ties in the vicinity where plaintiff's injuries occurred were rotten, and that some of the rail spikes were not driven in firmly. One of the witnesses so testifying stated that he had been up and down the track several times, but that he was "not railroad man enough to tell much about it." The other witness who testified to the condition of the track did not undertake to fix the time of his inspection of the track with reference to the date of plaintiff's injuries.
¶10 The foregoing is substantially all the evidence that was introduced to establish defendant's negligence. We are therefore called upon to determine whether this evidence is sufficient to make out a prima facie case and to take the case to the jury. In the determination of this question, we have considered the following Oklahoma cases cited by plaintiff and arising out of unusual and violent lurches or jerks of passenger carrying trains. St. Louis & S. F. Ry. Co. v. Gosnell, 23 Okla. 588, 101 P. 1126; St. Louis & S. F. Ry. Co. v. Fitts, 40 Okla. 685, 140 P. 144, L. R. A. 1916C, 348; Ramsey v. McKay, 44 Okla. 774, 146 P. 210; M., K. & T. R. Co. v. Lynn, 62 Okla. 17, 161 P. 1058.
¶11 In the Gosnell Case, discussed at length by both parties, plaintiff was a passenger for hire on a freight train that stopped for water just before reaching an intermediate station when plaintiff, thinking the train had reached the station, stepped out on the rear platform to talk with a fellow passenger seated on the car steps. Upon finding that the train had not reached the station, plaintiff, when the train started again, stepped back in the caboose on the way to his seat when the train suddenly stopped with such a jar that plaintiff was knocked off his feet and injured. None of the other passengers were hurt, but two among the others who were standing were knocked down by the jar. The jar resulting from the stopping of the train was variously described by the witnesses as "very hard jar", "harder than ordinary", "very uncommon", "unusually hard", "more severe," an...
To continue reading
Request your trial