Chicago, R.I. & P. Ry. Co. v. Owens
| Decision Date | 13 January 1920 |
| Docket Number | 9099. |
| Parties | CHICAGO, R.I. & P. RY. CO. ET AL. v. OWENS. |
| Court | Oklahoma Supreme Court |
Rehearing Denied April 20, 1920.
Syllabus by the Court.
Where an action is instituted against the receivers of a railroad company as defendants, service upon a person who, in the absence of a receivership, is a proper person to receive service of process against the railroad company, is deemed a sufficient service as against the receivers.
In all cases in this state, for the death of a husband, where such death is occasioned by the wrongful act or omission of any person or corporation, and where it is shown that the residence of the husband at the time of the death was in this state, and that no personal representative or administrator has been appointed, the action is properly brought by the widow in her own name.
A railroad company in the operation of its trains, while it does not owe an unauthorized person upon its tracks the duty to use ordinary care in discovering such person on its tracks or to discover his dangerous position, must, after the discovery of his peril, use ordinary care to avoid doing him injury.
The law does not impose upon those in charge of railway trains the duty to keep a lookout for trespassers who may be upon the track in the country, away from public crossings; and hence in order to hold the company liable for the injury, plaintiff must show, not that those in charge of the train were in a position to see, but either that they did see, or were in a position where they could not help but see, the perilous position of the trespasser.
The jury are the sole judges of the credibility of the witness and the weight of the evidence, and where positive evidence has been introduced to prove a certain state of facts, and no evidence has been introduced to rebut the same, but said evidence is inherently improbable, or the physical facts and circumstances surrounding the case, tend to contradict such evidence, and the testimony when taken together with the physical facts and circumstances surrounding the case, is of such a nature that men of ordinary intelligence might draw different conclusions therefrom, it is not error for the court to overrule a motion to instruct a verdict.
Upon an examination of the record, held, the case was properly submitted to the jury under proper instruction applicable to the case, and the evidence is sufficient to support said verdict.
Appeal from Superior Court, Pottawatomie County; Leander G. Pitman Judge.
Action by Letha Owens against the Chicago, Rock Island & Pacific Railway Company and H. U. Mudge and another, its receivers. Judgment for plaintiff, and defendants appeal. Affirmed.
R. J Roberts and C. O. Blake, both of El Reno, W. H. Moore, of McAlester, J. E. Du Mars, of El Reno, and Abernathy & Howell, of Shawnee, for plaintiffs in error.
Baldwin & Carlton, of Shawnee, for defendant in error.
This action was instituted in the superior court of Pottawatomie county by Letha Owens against the Chicago, Rock Island & Pacific Railroad Company, a corporation, and H. U. Mudge and Jacob M. Dickinson, receivers of said railroad, to recover damages for the death of her husband, Jesse Owens, alleged to have been killed by one of defendant's passenger trains on July 5, 1915, near Okarche, Okl. From a judgment in favor of the plaintiff in the sum of $3,000, the defendants have appealed, and for reversal of said judgment rely on four specifications of error, which are stated as follows: First. The receivers were not properly made parties to the action. Second. Plaintiff sued as an individual and not in a representative capacity. Third. The doctrine of the last clear chance has no application to the facts in evidence. Fourth. The court gave erroneous instructions. We will discuss the questions in the order above set out.
First. Was the receiver properly served and made a party to the action? The record disclosed that E. E. Blake was a resident agent of the Chicago, Rock Island & Pacific Railroad Company, and was appointed on March 21, 1912, and has been such agent since said time. The receivers were served by service of summons on E. E. Blake as the resident agent. E. E. Blake filed an affidavit that he was not the agent for service for the receivers, but was the agent for the railroad company. There is some conflict in the authorities upon this question in the different states, but the weight of the authority is announced in the case of Ennest v. Pere Marquette R. Co., 176 Mich. 398, 142 N.W. 567, 47 L. R. A. (N. S.) 179, Ann. Cas. 1915B, 594. The rule announced in said case is quoted in the note of 47 L. R. A. (N. S.) 181, as follows:
To the same effect is the holding of this court in the case of M., K. & T. Ry. v. Hudson, 175 P. 743.
E. E. Blake, in the absence of a receivership, was a proper person to receive service of process, and, the receivers having failed to designate a different person upon whom service might be made, we think that the receiver was properly served and made a party to said action, and the court committed no error in overruling the motion to quash the service of summons upon said receivers.
The second assignment of error is that the plaintiff was not entitled to recover in her individual capacity. The petition alleged that she was the widow of Jesse Owens, the deceased, and that no executor or administrator of the estate had ever been appointed, and that there were two children, to wit, William Owens, 5 years of age, and Dosie Owens, 3 years of age. Section 5282, R. L. 1910, provides as follows:
"In all cases where the residence of the party whose death has been caused as set forth in the preceding section, is at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in the said section may be brought by the widow, or where there is no widow, by the next of kin of such deceased."
The territorial Supreme Court in the case of Oklahoma, Gas & Electric Co. v. Lukert, 16 Okl. 397, 84 P. 1076, in construing said section of the statute, stated as follows:
"In all cases in this territory, for the death of a husband, where such death is occasioned by the wrongful act or omission of any person or corporation, and where it is shown that the residence of the husband at the time of the death was in this territory, and that no personal representative or administrator has been appointed, the action is properly brought by the widow in her own name."
This case has been followed by this court in the case of Big Jack Mining Co. v. Parkinson, 41 Okl. 133, 137 P. 678; Blunt v. Chicago, Rock Island & P. Ry., 173 P. 656. Under this section of the statute the widow was the proper person to bring said action.
The third assignment of error is that the court erred in overruling the motion of defendants for an instructed verdict in favor of the plaintiff in error, for the reason that there is not sufficient evidence to support the verdict.
It was alleged in the petition, and supported by the evidence, that the deceased and a brother were lying asleep, or in an unconscious condition, on the railroad track about 200 or 250 feet south of a public railroad crossing and close to a private crossing, where they were run over by an engine and train of defendant railway company. The case was tried upon the theory that the deceased was a trespasser, and, if the verdict can be sustained, it must be by applying the law applicable to the doctrine or rule of the last clear chance. The rule announced by this court in the case of Atchison, T. & S. F. Ry. Co. v. Baker, 21 Okl. 51, 95 P. 433, 16 L. R. A. (N. S.) 825, St. Louis & S. F. Ry. Co. v. Clark, 42 Okl. 638, 142 P. 396, and Atchison, T. & S. F. Ry. Co. v. Miles, 170 P. 896, is as follows:
"A railroad company, in the operation of its trains, while it does not owe an unauthorized person upon its tracks the duty to use ordinary care in discovering such person on its tracks or to discover his dangerous position, must, after the discovery of his peril, use ordinary care to avoid doing him injury."
The Supreme Court of Kentucky, in the case of Tennessee Cent. R. R. v. Cook, 146 Ky. 372, 142 S.W. 683, stated the rule as follows:
"The law does not impose upon those in charge of railway trains the duty to keep a lookout for trespassers who may be upon the track in the country, away from public crossings; and hence, in order to hold the company liable for the injury, plaintiff must show not that those in charge of the train were in a position to see, but either that they did see, * * * or were in a position where they could not help but see, the perilous position of the trespasser."
It is the contention of the plaintiff in error that there was not sufficient evidence to submit the case to the jury. In support of this contention they rely upon the fact that the engineer testified positively that he did not see the deceased until the train was on the public highway crossing which was approximately 200 feet from where the deceased and his brother were lying on the railroad track, and the engineer immediately blew the whistle, set the brakes, and did everything within his power to stop the train; but it was impossible to stop the train in a less distance than 250...
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