Chicago, R.I. & P. Ry. Co. v. McCleary
| Decision Date | 08 October 1935 |
| Docket Number | 25144. |
| Parties | CHICAGO, R.I. & P. RY. CO. v. McCLEARY. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Dec. 24, 1935.
Syllabus by the Court.
1. Where the evidence shows without conflict that a railroad track has been used openly and continuously as a footpath, by a large number of persons, for a long period of time, without objection by the railroad company, a person using such footpath is a licensee.
2. When a licensee is on the tracks or premises of a railroad company by invitation, express or implied, the railroad company is required to exercise such degree of care and watchfulness to protect such person against injury as is commensurate with the probability that such person may be upon its track or premises at that point.
3. Ordinarily the question of proximate cause is one for the jury, and it becomes one of law for the court only where the facts are such that all reasonable men must draw the same conclusion from them.
Appeal from District Court, Oklahoma County; R. P. Hill, Judge.
Action by Ashley McCleary against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
W. R Bleakmore, W. L. Farmer, John Barry, and Robert E. Lee, all of Oklahoma City, for plaintiff in error.
Billups & Billups, of Oklahoma City, for defendant in error.
About 6:30 p. m. on September 30, 1931, plaintiff, Ashley McCleary was walking through the switchyards of the defendant, the Chicago, Rock Island & Pacific Railway Company, at Oklahoma City. These yards are located several blocks east of the main business district of the city. The distance across the yards north and south is about 300 feet, and east and west about one-half mile. There were no streets, alleys, or other thoroughfares running either north and south across, or east and west through, these yards. Plaintiff for several years had been working for the defendant railroad company in and about the freight yards. On the day in question plaintiff left or quit his work about 5 o'clock p. m., and went down to the business district of Oklahoma City on private or personal business. He lived in the northeast part of the city, beyond the railroad yards, and was going home from his mission in the business district at the time he was injured. On his way home plaintiff, as had theretofore been his custom, walked through the switchyards in an easterly direction, and along the north side of one of the tracks therein which was called the "Barber track." The track along which plaintiff was walking had, according to the undisputed testimony, been used by a large number of persons for a long period of time as a pathway to walk from the northeast or east part of the city to the business district of Oklahoma City. At the time when plaintiff was using said tracks as a pathway, there was a switch engine pulling 12 cars of merchandise over the Barber track from west to east, in the same direction plaintiff was going. The switch engine was headed west, although traveling east, and there was a brakeman, or employee, upon the back of the engine-or front of the train-as a lookout. The most northerly track in the yards at the place where the plaintiff was walking at the time of the injury was called the "Stock track." Plaintiff testified there were a number of cars located upon the Stock track, standing still, as he was walking east between the south side of said cars and the north side of the Barber track, when his attention was first directed to the switch engine and 12 merchandise cars by a great deal of popping and racket on the south side of plaintiff. Plaintiff looked up and saw the switch engine right on him. The engine passed him, also two or three box cars, traveling at a rate of speed of about 30 miles per hour, according to the testimony of plaintiff's witnesses. This was in excess of the speed limit prescribed by applicable ordinance of the city of Oklahoma City. The clearance between the cars on the Barber track and the cars on the Stock track was about 3 feet 4 inches. As the moving train passed, dirt and gravel flew up into the face of plaintiff. He continued walking east between the moving train to the south and the stationary string of cars on the north and after the engine and two or three box cars had passed him, he heard some one whistle. As he looked around, a car which he says was wider than the ones which had passed him struck him on the shoulder, knocking him down, and in falling the plaintiff said he guessed "my hand went over the rail and it mashed my hand up into rags."
Prior to the time the engine and box cars on the Barber track were first noticed by plaintiff, there had been no signal by whistle or bell or other means to notify him of the approach of the train. None of the train crew saw plaintiff, according to the testimony of those members of the crew who testified.
Counsel for plaintiff asked him the following question:
"
As a result of the accident, plaintiff's hand was amputated, and upon trial the jury rendered a verdict of $2,000 in favor of plaintiff.
The petition of plaintiff charges two acts of negligence upon the part of defendant, as follows:
First. The defendant, through its employees, saw, or by the exercise of reasonable diligence could have seen, the plaintiff in the dangerous and perilous position in which he was, in time to have stopped or slowed down the train and prevented the injury to plaintiff; but, instead, the defendant failed and refused to exercise reasonable and ordinary care to prevent injury to the plaintiff.
Second. The defendant operated its train at an excessive and reckless rate of speed and at a rate of speed which was in violation of the ordinances of the city of Oklahoma City.
In giving the statement of facts as above, the evidence most favorable to the plaintiff and to the verdict of the jury has been used, except as to the clearance between the cars on the Barber track and the cars on the Stock track, concerning which there is definite and indisputable testimony upon the part of the defendant, which, we feel, the jury would be required to believe.
The defendant, upon appeal, contends:
First. Defendant violated no duty it owed to the plaintiff and therefore could not have been guilty of negligence.
Second. Since plaintiff was merely a licensee, the only duty of defendant was not wantonly and willfully to injure plaintiff after his perilous position was discovered.
The rules for which defendant contends are not applicable here. The question of the duty of a railroad company to a licensee came up squarely for decision in this court for the first time in the case of Wilhelm v. Missouri, O. & G. R. Co., 52 Okl. 317, 152 P. 1088, L.R.A. 1916C, 1029. Midland Valley R. Co. v. Kellogg,
106 Okl. 237, 233 P. 716, 718, and in the more recent case of Gulf, C. & S. F. R. Co. v. Nail, 156 Okl. 294, 10 P.2d 668, 671.
In the case last cited, the opinion by Mr. Justice Swindall states:
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