Chi., R. I. & P. Ry. Co. v. Pedigo
| Decision Date | 09 February 1926 |
| Docket Number | Case Number: 16151 |
| Citation | 123 Okla. 213,252 P. 1095,1926 OK 118 |
| Parties | CHICAGO, R. I. & P. RY. CO. v. PEDIGO, Adm'r, et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Railroads--Care Due Persons on Track After Discovery.
It is the duty of the employees of a railroad company in charge of an engine and train, when they observe a person to be in a place of danger, to use ordinary care, commensurate with the conditions, to avoid injury to such exposed person. That such person may have passed into the place of danger on account of his negligence, is not material in determining the liability of the defendant, where the charge is that the employes failed to use reasonable care after discovering the danger of the exposed person.
2. Same--Last Clear Chance Doctrine Invocable for Licensee or Trespasser.
The application of the last clear chance doctrine in the trial of a cause renders it immaterial whether the injured party passed on to the premises of the defendant as a licensee or trespasser.
3. Master and Servant--Railroads -- Injury to Person on Tracks--When Verdict for Employe as Joint Defendant Does Not Relieve Railroad of Liability.
A verdict for an employee of the railroad company who is joined with the latter in an action for tort does not relieve the master from liability as vice principal, where the evidence is such that the jury may have concluded that the negligence of another employe, who was not joined in the action, was the proximate cause of the injury
4. Railroads--Recovery for Death of Person on Track--Sufficiency of Evidence.
Record examined and held, that there is sufficient evidence to support judgment in favor of the plaintiff.
Commissioners' Opinion, Division No. 2.
Error from District Court, Caddo County; Will Linn, Judge.
Action by P. H. Pedigo, as administrator of the estate of B. R. Pedigo, against the Chicago, Rock Island & Pacific Railway Company and Earl Humphreys. Judgment for plaintiff against the Rock Island, and codefendant Humphreys. The Rock Island appeals. Affirmed.
W. R. Bleakmore, A. T. Boys, John Barry, and W. F. Collins, for plaintiff in error.
Ledbetter, Stuart, Bell & Ledbetter and A. G. Morrison, for defendants in error.
¶1 P. H. Pedigo, as administrator of the estate of B. R. Pedigo, commenced his action for damages against the Chicago, Rock Island & Pacific Railway Company, and joined in the action Earl Humphreys, who was in the employ of the railway as a fireman at the time of the accident. The allegations of the petition charging negligence in causing the death of plaintiff's decedent are, in substance:
¶2 First, that B. R. Pedigo, the deceased, was walking along on the railway track, where it had been the practice of persons to travel for a long time; that the travel of pedestrians back and forth along the right of way where the accident occurred had been a practice for such a period of time as to charge the railway with notice of such acts; that a well-beaten path had been made by such pedestrians along the track, sufficiently so to give the railway notice of such use; that it was the duty of the railway's employes to maintain lookout for persons who might be using this particular part of the right of way for travel; that the failure of the employes to discharge such duty was the proximate cause of the death of plaintiffs, decedent. Second, that the engineer and fireman in charge of the engine and train observed the deceased in a place of danger at such a distance from him, that such employes by the exercise of ordinary care could have avoided colliding with the deceased; that such failure to act on the part of the employes was the proximate cause of the injury.
¶3 The defendants filed their separate answers wherein a general denial was made, and included a plea of contributory negligence. The trial of the cause resulted in a judgment in favor of the plaintiff and against the railway company for the sum of $ 2,500. A verdict was returned in favor of Earl Humphreys, the fireman, who was joined in the action. The railway company has appealed the cause, and seeks reversal here mainly upon the proposition that the evidence of the plaintiff did not show that the plaintiff in error was guilty of negligence. The assignment calls for an examination of the evidence in relation to the acts of negligence as charged by the plaintiff.
¶4 The deceased, on the day of the accident, had visited a son at Bridgeport, Okla., a town on the railway lines of the defendant. The deceased started at about 2:30 p. m. to walk from Bridgeport east to his home, a distance of about six miles, along the right of way and track of the defendant. A passenger train of the defendant, in charge of the fireman, who is joined as defendant, and one of the defendant's engineers, collided with the deceased at a place about 1 1/2 miles east of Bridgeport. There was a public road crossing about one-half mile west of the point where the train collided with the deceased, and another crossing some 200 or 300 yards east of the point where the accident occurred. The engineer testified that he first observed the deceased about one-half mile ahead of the train, walking in an easterly direction between the rails of the track; that the train was then in the vicinity of or near the crossing west of where the accident occurred; that he sounded two long and two short blasts, which is the signal for a public crossing; that the deceased did not appear to have heard the sounding of this signal; that the witness then slowed down the speed of his train, and when he had reached a point about 900 or 1,000 feet from the deceased, he repeated the first signal given. The engineer testified that upon giving the second signal the deceased stepped off the track, along by the left side, and stopped in the clear; that the engine obstructed his view of the deceased when he had approached to about 200 feet of the latter, and that he did not see the deceased again until after the engine had collided with him. The fireman testified that when the engineer gave the second signal he understood the same to be a road crossing signal, and immediately went to his place on the left side of the engine to watch the crossing for automobiles; that he saw the deceased standing by the track. The answer of the fireman in relation to the distance the deceased was standing from the track is in the following language:
¶5 It will be observed that the fireman was estimating the distance that the deceased would clear the engine from a point some 200 feet distant. The fireman further testified that the deceased turned in an easterly direction, walking along the outside of the rails on the left side of the track. This testimony placed the deceased in a position where he would likely be struck by the approaching engine. The fireman testified that he immediately warned the engineer at about the same time the engine collided with the deceased, and ran to a point some 500 or 600 feet beyond the place of the accident before the train came to a stop.
¶6 The fireman testified that the signals given by the engineer did not cause him to believe that any person was on the track; that the signals as given were for a public crossing. One of the witnesses for the defendant testified that a danger signal consisted of a series of short, rapid blasts of the whistle. None of the employes who were witnesses for the defendant testified that any signals were given other than the public road crossing, signals until the backup signal was given after the collision.
¶7 There appears to be a conflict between the testimony of the engineer and the fireman in a material respect in relation to the accident. The engineer testified that he was 900 or 1,000 feet from the deceased when he gave the second signal. The fireman testified that he went to his seat at the sounding of the second signal, as he believed the same to be a public road crossing signal. He saw the deceased standing by the railway track on the left side, and the train was then 200 feet from the deceased. There is a discrepancy as to the distance the train was from the deceased at the time the second signal was given, as between the evidence of the engineer and the fireman. The testimony of the engineer placed the train about 900, or 1,000 feet distant from the deceased at the time the second signal was given, while the testimony of the fireman placed the train about 200 feet, or a little more, from the deceased.
¶8 The testimony of certain witnesses of the plaintiff was to the effect that they heard the crossing signal first given as far as a mile west of where the accident occurred, and that the next signal was given at about the time the train stopped.
¶9 The testimony of the plaintiff showed that the hearing and eyesight of the deceased were good. The testimony did not show that the deceased was laboring under any physical infirmity that interfered with his normal, everyday actions.
¶10 One of the witnesses for the defendant testified to the effect that a danger or...
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Carpenter v. Kurn
... ... holds that they support respondent's contentions ... Carpenter v. Kurn, 126 S.W.2d 997. This court in its ... first opinion cited the Pedigo case, 123 Okla. 213, 252 P ... 1095 and the Bryan case, 113 Okla. 39, 237 P. 613, as stating ... the applicable law. Those decisions are approved ... ...
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