Chicago, R.I. & P. Ry. Co. v. Zirkle
| Decision Date | 18 November 1919 |
| Docket Number | 10075. |
| Citation | 185 P. 329,76 Okla. 298,1919 OK 335 |
| Parties | CHICAGO, R.I. & P. RY. CO. v. ZIRKLE. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
To constitute actionable negligence where the alleged wrong is not willful and intentional, three essential elements are necessary: First, the existence of a duty on the part of the defendant to protect the plaintiff from injury; second failure of the defendant to perform that duty; and, third injury to the plaintiff resulting from such failure.
[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Actionable Negligence.]
What is or is not negligence is ordinarily a question of fact for the jury, and where the standard of duty is not fixed but variable, and shifts with the circumstances of the case, it is incapable of being defined as a matter of law, and where there is sufficient evidence it must be submitted to the jury to determine what it is and whether it has been complied with.
The determination as to what constitutes ordinary care reasonable prudence, and the like is for the jury, unless the facts are such that all reasonable men must draw the same conclusion.
Section 6, art. 23, of the Constitution (section 355, Williams' Const.), which provides that the defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury, constitutes the jury the tribunal to determine these defenses.
Additional Syllabus by Editorial Staff.
In action against railroad for injury to postal employé when a mail truck was moved by defendant's employé across his foot causing serious injury from which he died, and in view of the knowledge of the employé in charge of the truck of the customary manner in which deceased received mail, evidence held to make defendant's negligence a question for the jury.
Error from District Court, Marshall County; Jesse M. Hatchett, Judge.
Action by Mrs. Anna Zirkle, administratrix of Charles Zirkle, deceased, against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Raymond A. Tolbert, of Hobart, and C. O. Blake and R. J. Roberts, both of El Reno, for plaintiff in error.
Ledbetter, Stuart, Bell & Ledbetter, of Oklahoma City, for defendant in error.
Mrs. Anna Zirkle, administratrix of the estate of Charles Zirkle, deceased, instituted this action in the district court of Marshall county against the defendant, Chicago, Rock Island & Pacific Railway Company, to recover damages caused by a mail truck being moved by one of defendant's employés across Zirkle's foot, causing serious injuries, as a result of which it is alleged he died on May 27, 1914. The petition alleges two causes of action. The first cause of action is for damages accruing to deceased during his lifetime and surviving to the plaintiff as administratrix of his estate. The second cause of action is for $25,000 damages to his heirs for his death. On the first cause of action plaintiff recovered a judgment for the sum of $1,250, from which the defendant railroad company has appealed, alleging that there is not any evidence in the record showing primary negligence on the part of the defendant railroad company, and that the record shows contributory negligence as a matter of law.
There is very little conflict in the evidence, and the circumstances of the injury are practically undisputed. The evidence shows that the deceased, Charles Zirkle, was employed under Mr. C. E. Gunn in the post office department of the United States government, and that in the course of the deceased's employment it was his duty and custom to deliver mail bags to the cars of the defendant railway company at its depot in El Reno, Okl., and to receive from its said cars mail in bags to be taken to the post office in said city. The north and south line of the Rock Island Railway Company, extending from Chicago, Ill., to Dallas, Tex., crosses the east and west line of railroad of said company from Memphis, Tenn., to El Paso, Tex., at El Reno, where a large quantity of mail is unloaded from the trains on one line and transferred to the trains on the other line. The through mail was unloaded from the mail cars on defendant's train onto a truck, and either placed on connecting trains or delivered to the transfer station or terminal station, for which purpose the United States government had for some time been using a building adjoining the tracks and station. The deceased's duties related to the handling of the local mail only. The mail coach usually stopped at the terminus of a street between the express office and the depot, which only extended to the track, as it had not been opened up beyond the station. There was a platform or pavement there on which trucks had been placed for the use of the transfer men. The way the mail was customarily handled was for one of the employés of the company to place a truck by the car door, and the mail was unloaded out of the car onto the truck. Either Mr. Gunn or Mr. Zirkle would go to the truck in order to secure the bags containing the El Reno mail and they would stand just as close to the truck as they could get. The mail clerk in the car would come to the door and say, "Here's your pouch," and hand it to the party who had come after it-either Mr. Gunn or Mr. Zirkle. Sometimes the clerk would toss it to them, and if the bag was heavy sometimes the man on the truck would take hold of it and hand it over to them. In loading the truck it was the custom of the transfer man to load one end, and then move the truck and load the other end. On the occasion of the injury one Ralph Tyson was in charge of the truck, and the particular truck in use at that time was about eight feet long and four feet wide, and had steel-rimmed tires. Its top was about even with the car door. There was about 100 pounds of mail on the truck, which was from one-third to one-half full. The truck was on the brick platform or sidewalk between the depot and express office. With reference to the way in which the injury was inflicted Tyson testified as follows:
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