Chi., R. I. & P. Ry. Co. v. Mcculley
| Decision Date | 14 November 1911 |
| Docket Number | Case Number: 1170 |
| Citation | 1911 OK 368,120 P. 279,30 Okla. 178 |
| Parties | CHICAGO, R. I. & P. RY. CO. v. MCCULLEY. |
| Court | Oklahoma Supreme Court |
¶0 1. TRIAL--Taking Case or Question from Jury--Direction of Verdict. The question presented to a trial court on a motion to direct a verdict is whether, admitting the truth of all the evidence which has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may be reasonably drawn from it, there is enough competent evidence to reasonably sustain a verdict, should the jury find in accordance therewith. Where the evidence is conflicting, and the court is asked to direct a verdict, all facts and inferences in conflict with the evidence against which the action is to be taken must be eliminated entirely from consideration and totally disregarded, leaving for consideration that evidence only which is favorable to the party against whom the motion is leveled.
2. RAILROADS--Operation--Liability for Injury. On October 30, 1908, a firm in Kansas City, Mo., consigned to one Tobin, at H., Okla., some billiard and pool tables. The shipment was made in car No. 32372, belonging to the Frisco Railroad Company, and was loaded by that company and shipped the entire distance over its line, arriving at Holdenville on November 4, 1908, where it was, by the conductor of the said Frisco Railway, placed on a switch near the depot, used jointly by the Frisco and Rock Island Roads; that plaintiff, who was a drayman of several years' experience, on the 7th day of November, was employed by the consignee to unload the billiard tables from said car; that the consignee gave him the bill of lading for the same; that he called at the depot and asked for the shipment; that he did not know which road brought the shipment to Holdenville, or which one located the car at the point where he found it, nor who loaded the same, nor whose track it was on, although he thought it was on the Rock Island track, but admitted that the track was used by both roads for the purpose of placing cars to be unloaded; that when he presented the bill of lading to the station agent, the latter told him to get the platform man to show him the car; that he spoke to the platform man, and was directed by him to the car; that he found the tables, together with other merchandise, therein; that he did not observe anything wrong in the manner in which the car was loaded; that, in removing one of the slabs of stone which formed the top of a billiard table, it fell over and upon him and broke his leg; that the agent and other employees at the depot were acting, in dual capacity, for both roads; that the business of the roads was conducted separately, and that when the agent was handling Frisco business he was acting as a Frisco servant, and while transacting Rock Island business he was a Rock Island servant, and that the Rock Island Company had nothing whatever to do with the loading, shipment, location, or unloading of the car; that it received nothing from the same in any manner, and had nothing to do with it at any time; that all the records at the depot concerning the same showed that it was Frisco business; that the Rock Island had no interest in or control over the Frisco Company, and was not bound in any way to answer for the faults or negligence of the Frisco agents. Held, that the Rock Island Company owed no legal duty to the plaintiff in the premises, and that plaintiff had no cause of action against said Rock Island Company for damages, by reason of an injury received on account of the negligent manner in which the car was loaded; and held, further, that the court, under the facts of this case, erred in not directing a verdict in favor of the defendant.
Error from District Court, Hughes County; John Caruthers, Judge.
Action by Bert McCulley against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant brings error. Reversed, and cause dismissed.
C. O. Blake, H. B. Lowe, R. J. Roberts, and Willmott & Wilhoit, for plaintiff in error
Warren & Miller and Walker & Fancher, for defendant in error
¶1 On November 21, 1908, defendant in error (hereinafter designated as plaintiff) filed his petition in the district court of Hughes county against the Chicago, Rock Island & Pacific Railway Company, and sought thereby to recover the sum of $ 1,999.90, as damages for personal injuries, alleging, in substance, that he was a drayman of several years' experience, engaged in the business of unloading and transferring freight from defendant's cars to consignees in the city of Holdenville, and that on said day defendant placed on its tracks at Holdenville a car loaded with merchandise, and containing, among other things, billiard and pool tables to be unloaded and delivered to consignees, and that plaintiff, with the knowledge, consent, license, permission, and at the instance, invitation, and request, of defendant, went into said car for the purpose of unloading and transferring said freight, and that defendant had dangerously, negligently, and carelessly set up against the side of said car some heavy stone slabs, which were parts of the billiard and pool tables, and had failed to provide props or fastenings to prevent said stone slabs from falling; that crates and boxes were negligently and carelessly, and in a reckless manner piled up and placed on top of said stone slabs, and that said slabs and crates and boxes were so placed and arranged that only the weight of said crates and boxes kept said slabs in an upright position; that in unloading said freight it was necessary to remove said crates and boxes, and when plaintiff removed said crates and boxes the said slabs fell over and onto said plaintiff and knocked him down, and bruised, mangled, and wounded plaintiff in the following particulars, to wit, plaintiff's left leg was crushed, mangled, and broken between the knee and ankle, and he was bruised and injured on other parts of his body, and plaintiff was thereby permanently injured, and was thereby rendered unable to perform physical labor, and was disfigured and crippled for life.
¶2 Defendant filed a general denial for its first defense, and as a second defense, among other things, avers that if such injury and damage occurred to plaintiff it was the result of the carelessness and negligence of plaintiff and his agents. There was a trial to a jury, and verdict and judgment for plaintiff for $ 700, from which judgment the defendant appeals.
¶3 After plaintiff had rested, the defendant interposed a demurrer to the evidence, which was overruled by the court, to which ruling the defendant at the time excepted, and when all the evidence was in and the case was closed, the defendant moved to direct a verdict in its favor, which motion was denied, and the defendant in its brief relies upon these two rulings of the court for a reversal of the judgment.
¶4 From the evidence it clearly appears that the St. Louis & San Francisco Railroad Company and the Chicago, Rock Island & Pacific Railway Company used the same depot at Holdenville, and that the same employees and agents handled the business of both roads. For convenience, the St. Louis & San Francisco Railroad Company will hereinafter be designated the Frisco, and the Chicago, Rock Island & Pacific Railway Company the Rock Island. On October 30, 1908, the Brunswick-Balke-Collander Company, at Kansas City, Mo., consigned to one W. J. Tobin, at Holdenville, some billiard and pool tables; that the shipment was made in car No. 32372, belonging to the Frisco Company, and that the shipment was made entirely over said road, and when the car arrived at Holdenville on November 4, 1908, it was, by the conductor of the said Frisco Company, placed on a switch used by both roads near the depot; that plaintiff, on the 7th day of November, 1908, was employed by the consignee, W. J. Tobin, to unload the billiard tables from said car; that Tobin gave him the bill of lading for the tables; that he called at the depot and asked for the same; that he did not know which road brought the shipment to Holdenville, nor which one located the car at the point where he found it, nor who loaded the same, nor whose track the car was on at the time of the accident, although he thought it was on the Rock Island track, but admitted that the track was used by both roads for the purpose of placing cars to be unloaded; that when he presented the bill of lading to the freight agent the latter was busy, and told him to get the platform man to show him the car, and also to have him help unload the same; that he spoke to the platform man, who directed him to the car; that he backed his wagon up to the car, and opened it from the north side; that the car was standing on the track running east and west, and he found the tables, together with the other merchandise, therein; that the stone slabs, which formed the tops of the billiard tables, were standing on edge, crated, on the south side of the car, near the door, leaning against the wall (Record, page 43); that he came into the car from the north side; that the space between the slabs and the north side of the car was filled with other merchandise; that he began to unload the car at the door where he entered; that he took out all the goods until he got to the slabs of stone; that there were some crates of light stuff on the top of the slabs, which he and his helper picked up, whereupon the slabs fell upon and injured him; that the only thing tending to hold the slabs up at the time the accident occurred, as plaintiff testified, aside from the fact that they were leaning to the south, was the crate of goods on the top, which he was then lifting off; that all the other goods to the north of said slabs had by that time been by him removed; that he did not see the slabs falling until they struck him; that he did not notice anything wrong or...
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