Chicago, R.I. & P. Ry. Co. v. Smith
| Decision Date | 02 March 1920 |
| Docket Number | 9489. |
| Citation | 188 P. 670,77 Okla. 297,1920 OK 91 |
| Parties | CHICAGO, R.I. & P. RY. CO. v. SMITH. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In the instant case the deceased was one of the owners of an elevator situated upon the right of way of the defendant railway company, and while in the discharge of his duties in unloading a car of grain it is alleged that a train negligently bumped into the car he was unloading, and as a result the deceased was injured, from which injury he in a few days thereafter died. As one of its defenses the defendant railway company pleaded a contract wherein one of the partners for the firm of which the deceased was a member had prior to the erection of the elevator entered into with the railway company, wherein it was agreed that, in consideration of the execution of the contract and the benefits and privileges to be derived therefrom by the lessees, the railway company was to be released from liability from damages for injury to, or death of, persons including lessee, or any other person, which damage shall be cast upon the railway company, arising directly or indirectly due to the use, occupancy, or operation of the premises by the lessee, irrespective of whether any act of neglect of the railway company or its employés shall cause or contribute thereto. To this defense the plaintiff interposed a demurrer which was by the court sustained. Held, that the contract pleaded seeking to relieve the railway company from liability is repugnant to sections 7 and 8 of article 23 Williams' Ann. Const., which provides:
In this case the parties hereto admit there was no warning prior to bumping into a car from which the deceased was unloading grain. The plaintiff offered evidence tending to show that on other occasions without warning the trains of the railway company had bumped into cars being unloaded at the same place, and that the station agent had been notified of such. The defendant objected to this evidence for the reason that it tended to prove acts of negligence entirely distinct from the alleged act sued upon. Held, that this evidence if incompetent, would merely go to prove that warning was not given to those unloading grain from the car prior to the bumping into the car and the injury thereby resulting, and, as this is admitted, then the admission of this evidence was harmless, and under section 6005 of the Revised Laws of 1910 the cause should not be reversed, even though the evidence be incompetent.
The evidence as shown by the record and authorities cited examined, and we find that under the evidence adduced there was evidence sufficient to submit the issue of primary negligence to the jury.
The instruction requested and those complained of examined, and we find that there was no error therein sufficiently serious to require a reversal of the cause.
Error from District Court, Stevens County; W. M. Bowles, Judge.
Action by Myrtle B. Smith, executrix of Fred W. Smith, deceased, against the Chicago, Rock Island & Pacific Railway Company for damages for the negligent death of testator. Judgment for plaintiff, and defendant brings error. Affirmed.
W. H. Moore, of McAlester, and C. O. Blake, R. J. Roberts, and John E. Du Mars, all of El Reno, for plaintiff in error.
McKeever & Moore, of Enid, for defendant in error.
For convenience the parties to this suit will be referred to as they appeared in the trial court; that is, the defendant in error will be referred to as plaintiff, and the plaintiff in error will be referred to as defendant.
The plaintiff, as executrix of the estate of Fred W. Smith, deceased, brings this suit against the defendant for damages for the negligent death of the deceased, and in her petition alleges and avers that she is the wife of the decedent, and that James C. Smith, age 8 years, and Fred W. Smith, age 4 years, are minor children of the deceased and the petitioner; that the deceased was 36 years of age at the time of his death and was earning about $3,000 a year, and was the sole and only support of his wife, the petitioner, and his minor children above named.
She alleges that the deceased at the time of his injury was engaged in conducting an elevator in the city of Enid, Garfield county, Okl., known as the Stephenson elevator, located on the right of way of the defendant company, and in pursuance to the conducting of said business the deceased was having unloaded a car of grain which had been spotted by the defendant and was setting alongside of said elevator; that, with an employé inside of said car, the grain was being taken therefrom and placed in a chute which carried it from the car to the basement of the elevator; that immediately north of this car there was another car on the same side track situated some 20 or 25 feet from the elevator car and between the elevator car and the switch stand to the north that was being unloaded by other parties.
The plaintiff further avers that a train from the main line backed into this side track and bunted in and coupled to the car immediately to the north of the elevator car, and that the servants and employés of the defendant in charge of the train in a thoughtless and heedless manner, with a reckless disregard for the safety of the deceased, who was in the discharge of his duties in looking after his property and assisting in the unloading of the grain, wantonly, carelessly, and negligently bumped into the car standing at the elevator from which grain was being unloaded, with great violence, and knocked this car forward, and as a result the left hand of the deceased was caught between the chute on the elevator and a portion of the car and mangled, and as a result of said injury tetanus set up from which deceased died; that the injury was received by the deceased by reason of no fault of his.
The plaintiff further pleads that the defendant had been warned by the owners of the elevator with reference to bunting cars on the side track while it was being occupied by said elevator owners, and that on other occasions the servants and employés of the defendant had negligently bunted cars on previous occasions, and that in disregard of said warning had on two other occasions knocked the chute off from the elevator.
The plaintiff prayed for judgment in the sum of $35,000.
The defendant files a general denial, admits, however, that it is a corporation, and further pleads that the deceased at the time of his injury was guilty of negligence and carelessness which directly and proximately contributed to cause his injury; that is, the deceased knew and was warned by the employés that it was the intention of the defendant to couple onto and move the car being unloaded, as alleged in the petition, and that said decedent negligently and carelessly failed to take proper precaution to prevent being injured when said car was moved and negligently and carelessly placed his hand in a position to be mashed and injured when said car was moved, and that this negligence and carelessness on the part of the decedent directly and proximately contributed to cause the injury of which the plaintiff now complains.
The defendant further pleads as a separate defense that on a day prior to this injury the defendant had entered into a...
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