Chicago, R.I. & P. Ry. Co. v. Tate
| Decision Date | 11 April 1916 |
| Docket Number | 6380. |
| Citation | 156 P. 1182,57 Okla. 215,1916 OK 445 |
| Parties | CHICAGO, R.I. & P. RY. CO. v. TATE. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The mere fact that an injury occurs carries with it no presumption of negligence. It is an affirmative fact for the injured party to establish that the defendant has been guilty of negligence.
The record examined, and held, that the evidence adduced at the trial reasonably tends to establish negligence on the part of the defendant, and that this negligence was the proximate cause of the injury complained of.
The question of admissibility of statements as part of the res gestæ should, in a great measure, be left to the determination of the trial court.
Commissioners' Opinion, Division No. 2. Error from District Court, Seminole County; Frank Mathews, Judge.
Action by Birdie Tate against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.
W. H Moore, C. O. Blake, and R. J. Roberts, all of El Reno, J. G Gamble, of Des Moines, Ia., and K. W. Shartel, of Oklahoma City, for plaintiff in error.
E. L Harris, S. S. Orwig, and T. S. Cobb, all of Wewoka, for defendant in error.
This action was commenced by Birdie Tate, as surviving widow, against the railroad company for damages resulting to herself and her infant child on account of the death of her husband, J. M. Tate. There was a trial to the court and a jury, and a verdict returned for the plaintiff for the full amount claimed, to wit, the sum of $2,995. A brief summary of the allegations of the petition are: That the deceased was a resident of the town of Seminole, Seminole county, Okl., and the proprietor of a restaurant; that the defendant company operated its line of railroad through Seminole, and it maintained a depot and station there, at which passenger trains stopped for the purpose of taking on and discharging passengers and mail; that on the 7th day of January, 1912, J. M. Tate left his place of business a short time before its westbound passenger train was due, for the purpose of mailing a letter on that train which carried the United States mail and received mail at the station; that while attempting to mail the letter, and while upon the platform of such station, the engine of the passenger train coming into the station struck a truck on which a number of crates of chickens were piled, and which had been carelessly left too near the track, and knocked the crates of chickens from the truck and drove one of the crates against the deceased, striking him on the left side and shoulder; that from this injury he contracted pneumonia and 13 days thereafter died; and that the negligence and carelessness of the railroad in driving the engine against the truck was the proximate cause of the injury and death of the deceased. The railroad company answered by a general denial, and plea that the injury to the plaintiff, if any, was due entirely to his own negligence, and not the negligence or carelessness of the railroad company or its employés, and denied liability.
The evidence showed that the deceased was a man 34 years of age and was in good health when he went to the train to mail the letter on the day of the accident, and that a few minutes after the train passed Seminole he returned to his place of business up town, complaining to his wife that he had been injured and was spitting blood, and he went to bed and was confined thereto from that time up until the day of his death, 13 days thereafter. None of the plaintiff's witnesses saw the coop strike the deceased, and none of the railroad company's employés were called as witnesses; but one of the plaintiff's witnesses, a drayman, who had gone to the station to meet the train, saw deceased a few minutes afterwards, and saw the engine of the passenger train strike the truck, and saw the chicken coop knocked off the truck, and when spoken to the deceased said to the witness that one of the crates had hit him. When the deceased returned to his place of business, the plaintiff testified that he was complaining of pain in the left side and arm, and that there were mud prints of a box or crate on his back, shoulder, and left side; that on examination of his body she found no mark, but after his death she saw a bruised spot under the left shoulder. Two other witnesses testified that they saw the deceased at his place of business a short time after the accident, and he was complaining of pains in his side and left arm, and the deceased told them how the accident occurred; that a chicken crate was knocked against him by the engine of the passenger train, and caused his injury. Although the deceased went to bed immediately and was in pain and distress, the regular physician was not called until 5 days thereafter. This doctor testified that when he reached the bedside of the deceased he found him in the first stage of pneumonia, that is, that he then had the initial chill, and that he treated him for lobular pneumonia from that time to the date of his death, 8 days thereafter; that he examined the body of the deceased and found no marks thereon; that, while the treatment given the deceased was the usual treatment in pneumonia, his case was peculiar in some respects, in this, that he complained of pain in his left arm and side, and, again, the seat of the disease was the upper lobe of the left lung; that the lower lobe of the right lung was the usual seat of pneumonia, and, again, the case was peculiar on account of the charcter of the expectorations. Another physician testified that pneumonia is a germ disease, and that the...
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