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

• Decision Date: 27 November 1923
• Docket Number: Case Number: 14426
• Citation: Chi., R. I. & P. Ry. Co. v. Pedigo, 1923 OK 1023, 226 P. 72, 102 Okla. 72 (Okla. 1923)
• Court: Oklahoma Supreme Court
• Parties: CHICAGO, R. I. & P. RY. CO. v. PEDIGO.

1923 OK 1023

226 P. 72

102 Okla. 72

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

Case Number: 14426

Supreme Court of Oklahoma

Decided: November 27, 1923

Syllabus

¶0 1.Railroads -- Liability for Personal Injuries -- Lack of Evidence of Negligence.

A railroad company will not be held liable for personal injuries where there is no positive evidence, on reasonable inference, to be drawn from the testimony that the railroad company was guilty of negligence.

2.Appeal and Error -- Review -- Verdict -- Lack of Evidence.

The verdict of a jury is not binding upon this court where the testimony in support of same is not conflicting, and where there is no positive evidence to support the same, nor any reasonable inference from all the testimony that tends to support same.

C. O. Blake, W. R. Bleakmore, A. T. Boys, and W. F. Collins, for plaintiff in error.

Ledbetter, Stuart, Bell & Ledbetter and A. G. Morrison, for defendant in error.

HARRISON, J.

¶1 This action arose out of the following circumstances, to wit: Robert Pedigo, a young man about 28 years of age, on a Sunday afternoon was going from Geary some eight miles out in the country to a place where he had been making his home, and had been for some eight or more years, and in starting on his route he started up the railroad track leading north from Geary, Okla.He was subject to epileptic attacks, epileptic fits, and while walking along the track he was taken with one of these habitual attacks and fell on the track, remaining there, from the best we can glean from the evidence, for an hour or more before sustaining the injuries alleged to have been caused by the railroad company.It is shown by the evidence that while on the track walking north, which was called up the track, he met a Mr. Sisney and had some conversation with him.Mr. Sisney was crossing the track with a cow to a pasture beyond, and passed a few words with plaintiff.Mr. Sisney testified that after he returned to his home, he spoke to his wife of meeting the party and thought he was crazy, and something was said between them as to whether a policeman should be called, but they did not do so.Later, looking under a string of freight cars sitting on a side-track, they could see him, Pedigo, sitting beyond on the rails of the main track; they also testified to the fact of it being about a regular schedule time for the passenger train to go north out of Geary.The railroad employees testified to practically the same thing as to the schedule and the time of the train's passing; but this is about all that the Sisneys knew of the northgoing train; they did not observe it or remember it by the time it did pass, but merely remembered that it was accustomed to pass at about that time; but after the train had passed, one of the Sisneys noticed Pedigo, walking along the track, and observed that he seemed to be crippled or wounded, and upon further investigation ascertained that he had, while supposedly lying on the track, been run over and his arm cut off close to his shoulder by the train; this, however, was some time after the train had passed north.There was no evidence that the railroad employees saw him or knew anything about his being hurt.One employee answered that he did not see him, but objection was raised by defendant's counsel to this testimony as being improper cross-examination; the court sustained the objection and no more was said on the subject.The employee in question was being used as plaintiff's witness in order to establish the time of the passage of the train and to establish the duty of the train employees to keep a lookout along the track; but there was no testimony tending to show they had seen him.The objection to this class of questions on cross-examination having been sustained, plaintiff's counsel adroitly avoided any further questions as to whether the train employees had seen plaintiff on the track.The answer of the engineer to the question whether he saw plaintiff on the track, being an emphatic "no"; while he was not permitted to answer any further questions along this line upon cross-examination, yet there being no motion to strike the answer"no," nor request that it be disregarded by the jury, the answer "no" went to the jury unstricken and unchallenged, and this was the only positive testimony as to whether or not he had been seen by the employees before he was struck, or that they ever knew that he had been struck.

¶2 There was a persistent attempt made by plaintiff's counsel to prove that the track for several hundred yards was so clear...