Clemens v. St. Louis & S.F.R. Co.
| Citation | 131 P. 169,35 Okla. 667,1913 OK 200 |
| Parties | CLEMENS v. ST. LOUIS & S. F. R. CO. |
| Decision Date | 15 March 1913 |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In an action for personal injuries, where defendant denies generally, and alleges contributory negligence, the latter allegation is not an implied admission of negligence rendering proof of negligence unnecessary, and limiting the issues to that of contributory negligence.
Where in a suit for personal injuries sustained in a collision by plaintiff's intestate while an engineer on defendant's train, deceased was under orders to run from C. to L., which he did, and while running, under slow speed on the main track to the station at L. collided, in a dense fog, with a switch engine making up another train due to leave an hour and a half before, held, the pleadings raising the issue, that it was error for the court to exclude testimony offered to prove a custom, in effect, that the rule requiring deceased to take the side track under said order had been abandoned by being habitually disobeyed and disregarded by him with knowledge of the defendant.
Error from District Court, Oklahoma County; S. H. Russell, Judge.
Action by Elizabeth Clemens against the St. Louis & San Francisco Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed.
W. L McCann and A. T. Earley, both of Oklahoma City, for plaintiff in error.
W. F. Evans, of St. Louis, Mo., and R. A. Kleinschmidt, of Oklahoma City, for defendant in error.
This is an action in damages for personal injuries, brought by plaintiff in error, as the widow of James W. Clemens, against the defendant in error in the district court of Oklahoma county.
The petition substantially states that on January 14, 1907, deceased, while in the employ of defendant as an engineer on extra No. 340, started with his train, consisting of an engine and 11 cars, from Cache to Ft. Sill, by way of Lawton, where the same was due to arrive each day at 8:30 a. m., and where it was customary and in conformity to defendant's orders to approach the station on the main line, for the purpose of receiving orders to proceed; that on said morning a train, known as local No. 475, was making up at Lawton to go west through Cache to Quanah, Tex.; that when said extra No. 340 arrived at the west switch at the head of the passing track at Lawton it was defendant's duty to have the main track clear; that it failed so to do, but negligently permitted train No. 475 to operate on the main line between said switch and the station without notice to train No. 340, and as a result, while approaching under full control said station on said day, the engine attached to said extra No. 340 was struck by the engine of No. 475, which, owing to a dense fog, deceased could not see in time to avert a collision, and he was thrown from his cab and fatally injured. For answer, after a general denial, defendant alleged that deceased was guilty of contributory negligence, in that it was his duty, as a matter of reasonable precaution, and according, not only to the custom, but the rules and regulations of the company then in force, to approach the yards and terminals at that place cautiously, with his engine under full control, and to look out for other trains in the yards as he approached with his train, and not to proceed beyond the junction of the passing track until so ordered, but to side-track his train thereon; all of which, it is alleged, he did not do, but approached with his engine not under full control, and did not take the side track, but went down the main track without orders so to do, and without keeping the proper lookout, in consequence of which the collision occurred. The answer specifically denies that deceased was obeying the orders, rules, and regulations of the company at the time of the injury, but charges that the same was occasioned by his disobedience to an order, which reads:
--and which, under the rules of the company, it says, meant that No. 340 was required to run as an extra from Cache to Lawton prior to the departure of train No. 475, and that, said No 340 being inferior in class to the former, and its engine having the right to switch anywhere in the yards, it was the duty of deceased to side-track his train on the passing track and keep out of way of trains in the yards, and that the right of way of train No. 340 expired under said order when said passing track was reached. Defendant filed copy of said rules, regulations, and order, and alleged that the same were or could have been known to deceased by the exercise of due care, and asked to be discharged, with its cost. For reply, after a general denial, plaintiff specifically denied the existence of any custom, rule, or regulation, in force at the time of the injury, requiring...
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