Chicago, R.I. & P. Ry. Co. v. Smith
| Decision Date | 06 July 1932 |
| Docket Number | 20352. |
| Citation | 16 P.2d 226,160 Okla. 287,1932 OK 515 |
| Parties | CHICAGO, R.I. & P. RY. CO. v. SMITH. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Nov. 29, 1932.
Syllabus by the Court.
1. In this state the mere fact that an injury occurs carries with it no presumption of negligence.
2. The burden is upon the plaintiff, in an action to recover damages for an injury caused by alleged negligence, to show the existence of the negligence and that the negligence was the proximate cause of the injury.
3. A railroad company will not be held liable for personal injuries alleged to have been caused by the negligent acts of its employees, where there is no positive evidence of negligence or of facts from which negligence can be reasonably inferred.
4. Neither conjecture nor speculation may form a basis for a judgment.
5. A demurrer to the plaintiff's evidence in a personal injury action ought to be sustained, unless it is reasonably apparent from the evidence that the injury sustained by the plaintiff was caused by some wrongful act of the defendant in violation of a legal duty owing to the plaintiff.
6. Where there is no evidence reasonably tending to show that the defendant was guilty of negligence, it is error for the trial court to submit that issue to the jury.
7. To constitute actionable negligence, where the wrong is not willful and intentional, three essential elements are necessary: (1) The existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) failure of the defendant to perform that duty; and (3) injury to the plaintiff resulting from such failure.
8. A demurrer admits the truth of all the evidence and of all the facts which it tends to establish, as well as every fair and reasonable inference therefrom, and should be overruled unless the evidence and all inferences which a jury could reasonably draw from it are insufficient to support a verdict for plaintiff. But where the evidence in an action for personal injuries fails entirely to show primary negligence the court should sustain the demurrer and instruct a verdict in favor of the defendant.
9. An inference of negligence must be based upon something other than mere conjecture or speculation, and it is not sufficient to introduce evidence of a state of facts simply consistent with or indicating a mere possibility, or which suggests with equal force and leaves fully as reasonable an inference of the nonexistence of negligence. The inference of negligence must be the more probable and more reasonable inference to be drawn from the evidence.
10. Record examined and held: The judgment of the trial court is contrary to the law and the evidence.
Appeal from District Court, Garfield County; Charles Swindall Judge.
Action by Grace Smith, administratrix of the estate of Thomas C Smith, deceased, against the Chicago, Rock Island & Pacific Railway Company. Judgment for the plaintiff, and the defendant appeals.
Reversed and cause remanded with directions.
Petition for rehearing denied; CLARK, V. C.J., and McNEILL, and CULLISON, JJ., dissent. SWINDALL, J., disqualified and not participating.
W. R. Bleakmore and John Barry, both of Oklahoma City, and Curran, Sturgis & Hill, of Enid, for plaintiff in error.
Simons, McKnight, Simons, Mitchell & McKnight, of Enid, for defendant in error.
This is an appeal from a judgment of the district court of Garfield county, Okl., under the Federal Employers' Liability Act (45 U.S. CA §§ 51-59), in favor of the defendant in error, the plaintiff in the trial court, against the plaintiff in error, the defendant in the trial court, for damages caused by the alleged wrongful death of Thomas C. Smith, a conductor on a train owned and operated by the plaintiff in error, who was run over and killed by the locomotive of that train. Hereinafter the parties will be referred to as plaintiff and defendant, respectively, and the deceased will be referred to as the conductor.
The allegations of the petition as to negligence were denied by the defendant, who pleaded, in addition thereto, "assumption of risk" and "contributory negligence." Under that state of the record it is not necessary for us to review the allegations of the petition.
The record shows that on the 12th day of October, 1927, a freight train, hereinafter referred to as "first No. 94," left El Reno for Caldwell, Kan. When that train reached Okarche, Okl., the train crew received a special train order that train No. 95 southbound had the right of way, and for first No. 94 to wait at Enid. When first No. 94 reached the Enid yards, it pulled onto what will be called herein a "passing track" and stopped. One of the yard crew then gave an order for it to pull onto what is called "No. 1 track," and the train was pulled onto that track and stopped. The two brakemen then left the train to eat their evening meal. The engineer uncoupled the engine from the train, intending to put it on what is called "No. 2 track." Before he did so, the conductor appeared and said: "* * * Let's take the engine and go through the pass to the coal chute." The conductor got on the rear end of the tender, and, upon the signal of the conductor, the engine was backed onto and over the passing track until it reached a switch leading onto the main line track. That switch stand was set so as to permit the engine to pass onto the switch. The conductor changed that switch stand so that the engine would not pass onto the switch, but would proceed south over the passing track over a portion thereof called the "scale track." The conductor then passed behind the engine and across to the fireman's side of the track. He had a lighted lantern in his hand. He went over to a main line switch stand connecting with the switch to the passing track, and changed that switch stand so as to permit a train to pass onto the main line from the switch. He then walked toward that portion of the passing track called the scale track and gave a signal to back up. The engineer, in response to the signal of the conductor relayed to him by the fireman, slowly backed his engine over the passing track over that portion called the scale track for a short distance. After the engine had passed the switch stand, the engineer inquired of the fireman as to the whereabouts of the conductor and stopped the engine. He remained there for a few minutes until some one signaled for the engine to move forward. He then ran the engine forward past the switch stand, changed the switch stand to permit the passage of the engine backward onto the main line, and the engine passed over the switch and onto and over the main line. When the engineer reached a point opposite the spot where the conductor was last seen walking toward the scale track, the body of the conductor was seen lying on the passing track. It had been run over by the engine.
In this state the mere fact that an injury occurs carries with it no presumption of negligence. Chicago, R.I. & P. Ry. Co. v. Tate, 57 Okl. 215, 156 P. 1182. The burden is upon the plaintiff, in an action to recover damages for an injury caused by alleged negligence, to show the existence of the negligence and that the negligence was the proximate cause of the injury. Star v. Brumley, 129 Okl. 134, 263 P. 1086. A railroad company will not be held liable for personal injuries alleged to have been caused by the negligent acts of its employees, where there is no positive evidence of negligence or of facts from which negligence can be reasonably inferred. Chicago. R.I. & P. Ry. Co. v. Pedigo, 102 Okl. 72, 226 P. 72. Neither conjecture nor speculation may form a basis for a judgment. Eastern Torpedo of Ohio Co. v. Shelts et al., 121 Okl. 129, 247 P. 974.
Those rules must be applied to the facts shown by the record in this case under the rule adopted by this court as to what constitutes actionable negligence. That rule is: "To constitute actionable negligence, where the wrong is not willful and intentional, three essential elements are necessary: (1) The existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) failure of the defendant to perform that duty; and (3) injury to the plaintiff resulting from such failure." Chicago, R.I. & P. Ry. Co. v. Barton, 59 Okl. 109, 159 P. 250, and Chicago, R.I. & P. Ry. Co. v. Perkins, 115 Okl. 233, 242 P. 535.
Did the defendant fail to perform any duty to protect the conductor from injury? Unless it did there was no actionable negligence on the part of the defendant.
At the conclusion of the plaintiff's evidence, the defendant demurred thereto, and at the conclusion of all of the evidence, the defendant requested the court to instruct the jury to return a verdict in favor of the defendant. Those motions were overruled. The defendant contends that there was error on the part of the trial court in overruling them. That a demurrer to the plaintiff's evidence in a personal injury action ought to be sustained, unless it is reasonably apparent from the evidence that the injury sustained by the plaintiff was caused by some wrongful act of the defendant in violation of a legal duty owing to the plaintiff, is well settled in this state, and it is equally well settled that where there is no evidence reasonably tending to show that the defendant was guilty of negligence, it is error for the trial court to submit that issue to the jury. Choctaw, O. & W. Ry. Co. v. Wilker. 16 Okl. 384, 84 P. 1086, 3 L. R. A. (N. S.) 595; Oklahoma Gas & Electric Co. v. Lukert, 16 Okl. 397, 84 P. 1076; Midland Valley R. Co. v. Graney, 77 Okl. 54, 185 P. 1088; Smith et al. v. Clark, 125 Okl. 18, 256 P. 36; Lancaster v. St. Louis & S. F. R. Co., 128 Okl. 176, ...
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