Chi., R. I. & P. Ry. Co. v. Anderson
| Citation | 1930 OK 118,286 P. 787,142 Okla. 276 |
| Decision Date | 18 March 1930 |
| Docket Number | Case Number: 18353 |
| Parties | CHICAGO, R. I. & P. RY. CO. v. ANDERSON. |
| Court | Supreme Court of Oklahoma |
¶0 1. Railroads--Negligence--Elements to Be Proved in Action for Death of Person on Track.
In an action for damages for the death of plaintiff's son, alleged to have been caused by the negligence of defendant, it is necessary for plaintiff to show, first, a duty on the part of defendant to the deceased; second, the failure of defendant to perform that duty; and third, that the death resulted from such failure.
2. Evidence--Proof by Circumstantial Evidence.
Whenever circumstantial evidence is relied on to prove a fact, the circumstances must be proved and not themselves presumed.
Error from District Court, Caddo County; Will Linn, Judge.
Action by W. H. Anderson against the Chicago, Rock Island & Pacific Railway Company for damages for wrongful death of plaintiff's son. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions to grant a new trial.
W. R. Bleakmore, John Barry, and A. T. Boys, for plaintiff in error.
Pruett & Wamsley, for defendant in error.
¶1 Lester Anderson, twelve years of age, was killed September 20, 1925, on the right of way of the defendant railroad company, just east of Ft. Cobb in Caddo county, Okla. and W. H. Anderson, his father, brought this action for damages against the defendant railroad company and alleged that the death of his son was caused by the negligence of the defendant. The defendant requested a peremptory instruction, directing the jury to return a verdict for the defendant. The requested instruction was overruled, the cause submitted to the jury, and the jury returned a verdict in favor of plaintiff in the sum of $ 2,950, and a judgment was entered in favor of plaintiff for that sum. The case is here for review and it is urged that the court committed error in refusing to instruct the jury to return a verdict for the defendant.
¶2 The requested instruction raised the question of whether or not there was any evidence of primary negligence offered by plaintiff. The facts and circumstances established by the evidence are substantially, as follows:
¶3 The right of way of the railroad was 200 feet wide. The section foreman had permitted people to graze their stock on the right of way in 1924 and 1925 during grass season. The deceased was probably watching his father's cow tethered to the north right of way fence. The track was straight and the view unobstructed. The accident occurred about noon. The boy was dressed in blue overalls and a white shirt. The engine cab was about ten feet above the surface of the rails. The body of the deceased was found about six feet from the north rail. The deceased was struck on the head, and the attorneys for plaintiff, in their response to the petition for rehearing, say: "The boy was evidently not on the track, as his body was not mangled, but near enough to the track that some part of the train hit him on the head." The train ran its length before stopping. The customary place of the engineer was in the cab, on the north side. The boy was last seen on the right of way, but not on the track, about one hour before the accident. After the train had gone by the conductor shouted and inquired if anyone had missed a little boy. The train schedule from Anadarko to Ft. Cobb was 40 minutes. The train could have been stopped in about 100 yards. There is no evidence that the boy was on the track, or that he was seen by any of the train crew before the accident happened.
¶4 The accident did not happen at a railroad crossing, nor at any place used by the public, other than the fact that people were permitted by the section foreman to graze stock on the right of way during grass season. Whether or not the section foreman had authority to grant this permission and, if he did have such authority, whether or not the facts were such as to constitute the deceased an invitee, will not be decided herein. Without deciding that question, however, for the purpose of this case we are assuming that the deceased was an invitee, and that it was the duty of the defendant to keep a lookout for him.
¶5 The evidence is sufficient to establish the fact that the train could have been stopped within 300 feet. Under these circumstances, if the plaintiff had proven, as a primary fact, that the deceased was on the track, or in such close proximity thereto that he was in a position of peril, 300 feet, or more, in front of the engine,...
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