Chi., R. I. & P. Ry. Co. v. Stone

• Decision Date: 20 August 1912
• Docket Number: Case Number: 1598
• Citation: 1912 OK 538,125 P. 1120,34 Okla. 364
• Court: Oklahoma Supreme Court
• Parties: CHICAGO, R. I. & P. RY. CO. v. STONE.

1912 OK 538

125 P. 1120

34 Okla. 364

CHICAGO, R. I. & P. RY. CO. v. STONE.

Case Number: 1598

Supreme Court of Oklahoma

Decided: August 20, 1912

Syllabus

¶0 l. CARRIERS- -Injury to Trespassers--Gross Negligence. It is gross negligence for a railroad company, in the operation of its trains, to leave a string of freight cars unattended, or not under control, upon a siding or passing track where there is a sufficient grade to permit of the cars, either by gravitation or lack of control, running down such inclined track and onto the main line or track, and there collide with a regular passenger train then due. (a) The failure in such case to discharge a manifest duty is not to be excused by the fact that the party injured, himself free from contributory negligence, was a trespasser on the train with which the freight cars collided in escaping from the side track and running out and onto the main line. (b) The commission of such gross and wanton negligence is a violation of a manifest duty to the public, trespassers and all, themselves free from contributory negligence, not to turn such power loose without being under control.

2. SAME--Findings- -Evidence--Judgment. Evidence examined, and held sufficient to support the findings of fact of the trial court and the judgment entered thereon.

3. CARRIERS--Trespassers--Injuries. In the absence of wanton or gross negligence on the part of the employees of a railroad company, it is not liable for injury to trespassers on its cars or trains.

4. SAME-- Knowledge of Carrier's Servants. That a trespasser on a carrier's passenger train was permitted to occupy a position in a coach until the return of the carrier's ticket auditor or the arrival of the conductor without any attempt being made to remove him, and with the knowledge of the auditor that he was a trespasser, during which time he was injured in a wreck due to the gross negligence of the carrier, did not change his status as a trespasser.

C. O. Blake, H. B. Low, R. J. Roberts, and W. H. Moore, for plaintiff in error.

Moss, Turner & McInnis, for defendant in error.

SHARP, C.

¶1 It is admitted that defendant in error, at the time of his injury, was a trespasser upon a regular passenger train of defendant company. He neither had a ticket nor money with which to pay his fare from Banner to Oklahoma City, his point of destination. The accident occurred in the west end of the railroad yards at Yukon, the first station beyond where defendant in error surreptitiously took passage, and but a few miles (presumably the first stop) from where he entered the train. The passenger train on which he was riding left El Reno about 30 minutes late, and was running at the rate of about 30 miles an hour when approaching the west end of the passing track at Yukon station. On this passing track were some twelve or fifteen freight cars, which in some way, not clearly shown, were permitted to run downgrade to the switch block and onto the main track and collide with the incoming, regular passenger train from the west, on which defendant in error was riding. The engineer of the passenger train did not discover that the freight cars on the siding or passing track were in motion until the engine was within a few feet of them, and until too late to prevent a collision. These loose freight cars struck the passenger car on which defendant in error was riding, thereby causing the injury complained of. By agreement of counsel a jury was waived, and all issues of fact and law were submitted to the court. The findings of fact made by the court included that defendant in error was a trespasser; and when he suffered the damage complained of that the east-bound passenger train, upon which he was riding, was running at the rate of 30 miles an hour, and that on the side track within the town or village of Yukon was a string of freight cars, which had been left there, and which were moving toward the west; that the engineer discovered these moving cars when within about twenty feet of them, and applied the air brakes and endeavored to stop the train, but was unable to do so before the collision; that the railroad company was guilty of wanton negligence in leaving and abandoning the freight cars on the switch track in a moving condition, owing to the condition of the track and the grade, and with knowledge that they would likely run onto the main line and wreck the passenger train then due, and which facts were well known to the agents and employees of the defendant; that it was guilty of willful negligence and wanton disregard of human life to leave freight cars on a side track where, if put in motion, they would be liable to run onto the main line track at the time that the passenger train was due. Three propositions are discussed by counsel for plaintiff in error in their brief: First. That the only duty that the railway company or its employees owe to a trespasser upon one of its trains is not to wantonly or willfully injure him. Second. Trespassers cannot invoke the rule of res ipsa loquitur, and that the verdict cannot be sustained, in an action brought by a trespasser, upon presumptions of negligence under any circumstance. Third. That neither the allegations nor the evidence support the finding of willful and wanton negligence. The latter two points will be first considered under one head. The petition charged that the wreck and derailment of the coach on which the plaintiff was riding was caused by the employees of defendant negligently and knowingly permitting certain freight cars on a switch and side track of defendant's line of railroad to become unmanageable and beyond the control of the said employees, and to move and run over and along the side track and switch and onto the roadbed upon which the passenger train was running, and in the opposite direction to which the passenger train was being operated, and that by reason of the failure of the employees of defendant to stop the said passenger train before it had arrived at the place and point where the said switch and side track intersected the main line the collision and injury occurred; that by the exercise of reasonable care or diligence the employees of defendant operating said passenger train could have seen the said freight cars coming toward the main line upon which the said passenger train was being operated, and by such use of reasonable care would have known that a collision would have resulted, but that, notwithstanding, said employees wantonly, recklessly, and indifferently attempted to operate the passenger train at such a high rate of speed as that it would pass by the point where the switch and side track intersected the main line, thereby causing the derailment and accident complained of. We do not deem it necessary to consider the testimony as to how the string of freight cars moved from the passing track onto the main line. The fact that they did so move is shown, both by the testimony of Roy L. Brown for the plaintiff and F. J. Hasler, the engineer on the passenger train, and is not disputed. In Enid City Railway Company v. Webber, 32 Okla. 180, 121 P. 235, this court, speaking through Rosser, C., said:

"The first question to be decided is whether there is any proof of negligence. That there was such proof is clear. It is the duty of a railroad or street railway company to confine or fasten its cars, so they cannot be driven along its tracks by windstorms or other irresponsible forces. Brown v. Pontchartrain R. Co., 8 Rob. (La.) 45; Battle v. W. & W. R. Co., 66 N.C. 343; So. P. Ry. Co. v. Lafferty, 57 F. 536 ; Continental Trust Co. v. Toledo, etc., R. Co., 87 F. 133 ; L. & N. R. Co. v. Erving, 117 Ky. 625 ."

¶2 The court there further said:

"The very fact that the cars had drifted upon the main line raised a presumption of negligence upon the part of the company, unless there were other circumstances in the case changing that presumption."

¶3 There the cars had been driven out on the main line by a storm or other act Which might have tended to excuse the negligent act. On the contrary, it here appears that from the switch, where the accident occurred, up to the station is, to use the language of the engineer, a pretty steep upgrade. To leave a string of freight cars on such siding, not under control, and where the same, either by momentum or gravitation, might run downgrade to where the siding connected with the main line and then upon the said main line, even though in the daytime, and at a time when a regular passenger train was due, would be proof to show such gross and wanton negligence and recklessness as would manifest a disregard of all consequences. The burden was on the plaintiff to prove the defendant's negligence; but this burden was well borne by him when he proved the presence of the freight cars belonging to it, or under its control, running from the siding onto the main line in a manner such as could not be avoided by the exercise of due and reasonable care on the part of the passenger engineer. In Webster v. Rome, etc., R. Co., 115 N.Y. 112, 21 N.E. 725, affirming 40 Hun 161, it was said:

"It is quite true that the burden was upon the plaintiff to establish the defendant's negligence. But this burden was well borne by him when he proved the presence of the car belonging to it upon the track in the way of its passenger trains. The case thus made by the plaintiff could be met by the defendant by evidence tending to show that the car came upon the main track without its fault; and then, upon all the evidence, it was incumbent upon the plaintiff to satisfy the jury that there was negligence fairly attributable to the defendant."

¶4 The rule of res ipsa loquitur is not, therefore, involved. We think that the allegations in the petition were sufficiently broad and the proof adequate to support the findings of the trial court. The rule, therefore, announced by this court in St. Louis & S. F. R. Co. v. Gosnell, 23 Okla. 588, 101 P. 1126, 22 L.R.A. (N.S.) 892, and in ...