Chicago, R.I. & P. R. Co. v. Beatty

• Decision Date: 10 January 1911
• Citation: 116 P. 171,27 Okla. 844,1911 OK 13
• Parties: CHICAGO, R.I. & P. R. CO. v. BEATTY.
• Court: Oklahoma Supreme Court

116 P. 171

27 Okla. 844, 1911 OK 13

CHICAGO, R.I. & P. R. CO. v. BEATTY.

Supreme Court of Oklahoma

January 10, 1911

Syllabus by the Court.

Assuming the omitted duty imposed by statute to be the proximate cause of the injury or damage, the plaintiff having failed to exercise ordinary care, thereby contributing to the injury or damage by his negligence or want of exercise of ordinary care, by section 6, art. 23, of the Constitution, such question of fact should have been under all events submitted under proper instructions, to the jury for their finding thereon.

Error from Caddo County Court; B. F. Holding, Judge.

Action by W. W. Beatty against the Chicago, Rock Island & Pacific Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

C. O Blake, E. E. Blake, and H. B. Low, for plaintiff in error.

A. J Morris, for defendant in error.

WILLIAMS J.

Section 2902, Comp. Laws 1909 (section 2634, St. 1890), provides "The detriment caused by the breach of a carrier's obligation to accept freight, messages, or passengers is deemed to be the difference between the amount which he had a right to charge for the carriage, and the amount it would be necessary to pay for the same service when it ought to be performed." Section 521, Comp. Laws 1909 (Session Laws 1905, p. 144), provides: "It shall be the duty of every railroad company operating a line of road wholly or in part within this state for the transportation of freight, upon the verbal or written application of any shipper or its station agent or other agent in charge of transportation of freight for a car or cars to be loaded with freight other than perishable freight or live stock, stating the character of the freight and its final destination, to furnish said car or cars within four days from seven o'clock a. m. of the day following such application. Or, when such application specifies a future day when said car or cars are required, giving not less than four days' notice thereof computing from seven o'clock a. m. of the day following such application, it shall be the duty of said company to furnish said car or cars on the day specified in said application. For failure to comply with this section said company shall forfeit and pay to the shipper applying for said car or cars the sum of one dollar per car per day or fraction of a day's delay after free time, together with all actual damages said applicant may sustain thereby; provided, that if in case of fire, washouts, strikes, lockouts, or other unavoidable casualties such railroad company shall not be able to furnish such cars within such time, then and in that event such time or demurrer shall not begin to run until such obstacles and hindrances are removed."

It is insisted that the evidence does not justify a verdict in plaintiff's (defendant in error) favor as no proof was offered in accordance with the rule of damages prescribed by section 2902, supra. Said section was modified so as not to apply at least to any except live stock and perishable freight by section 521, supra, as contained in act of March 15, 1905, entitled "An act to regulate demurrage and storage charges, and to prevent delays in furnishing cars in the transportation and delivery by railroads of freight other than live stock and perishable freight." Sess. Laws 1905, pp. 143, 149, art. 7, c. 9; sections 520-529, Comp. Laws 1909; Rippey & Sons v. Art Wall Paper Mill, 112 P. 1119, decided at this term, but not yet reported. The question arises as to whether the damages claimed are "actual damages" sustained by plaintiff on account of the breach of duty imposed by said section 521. The correct rule seems to be that a person guilty of negligence or an omission of duty should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances, which in fact exist whether they could have been ascertained by reasonable diligence or not, would have thought at the time of the negligent act as reasonably possible to follow, if they had been suggested to his mind. Shearman & Redfield on Negligence (4th Ed.) § 29. The weight of authority seems to be that a party is liable only for such extension of a fire, negligently kindled by him, as a prudent person would have regarded as reasonably possible under the state of wind and weather existing at the time of the fire. Shearman & Redfield on Negligence (4th Ed.) § 666. See, also, Railway Co. v. Parry, 67 Kan. 515, 73 P. 105; Colorado Mtge. Co. v. Rees, 21 Colo. 435, 42 P. 42; Lowery v. Manhattan Ry. Co., 99 N.Y. 158, 1 N.E. 608, 52 Am. Rep. 12; Campbell v. City of Stillwater, 32 Minn. 309, 20 N.W. 320, 50 Am. Rep. 567. "All the authorities agree that the plaintiff cannot recover upon mere proof of his injury and of the defendant's breach of a statute or ordinance. *** In such case the action would fail for want of connection between the defendant's negligence and the plaintiff's damage. The plaintiff must prove that the breach of regulation was the proximate cause of his damage." Shearman & Redfield's Negligence (4th Ed.) § 27. See, also, Tobin v. Symonds et al., 6 Nova Scotia, 141; Corrister v. Kansas City, St. Joseph & Council Bluffs R. R. Co., 25 Mo.App. 619; Morrison v. Davis & Co., 20 Pa. 171, 57 Am. Dec. 695; Shearman & Redfield on Negligence (4th Ed.) § 40; 8 Am. & Eng. Encyc. of Law (2d Ed.) 575, footnotes 7, 8.

Assuming without deciding that the negligence or omitted acts enjoined by statute were the proximate cause of the injury or damages by the defendant (plaintiff in error), still it was by the concurring negligent acts of the plaintiff (defendant in error). The rain having fallen by act of God, assuming that it could have been reasonably anticipated, and the injury therefrom reasonably avoided, the plaintiff had as much opportunity to apprehend the falling of the rain and the damage therefrom as the defendant. There is no evidence in the record as to the rainfall. The plaintiff in placing the seed at a place where they were exposed to the rains, and permitting them to remain there for a period during which the rains would likely fall upon them, whereby they would heat and spoil, would contribute to the injury thereby concurring in the damage. 7 Am. & Eng. Ency. of Law (2d Ed.) pp. 373 375. Ordinary care would have required ...