Earl v. Oklahoma City-Ada-Atoka Ry. Co.
| Decision Date | 09 April 1940 |
| Docket Number | 29198. |
| Citation | 101 P.2d 249,187 Okla. 100,1940 OK 185 |
| Parties | EARL v. OKLAHOMA CITY-ADA-ATOKA RY. CO. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
It is a settled rule that where there is no evidence reasonably tending to show that the defendant was guilty of negligence in an action for personal injury it is not error for the trial court to sustain a demurrer to the evidence.
Appeal from Superior Court, Seminole County; Otis H. Presson, Judge.
Action by Josephine Earl, administratrix of the estate of Joe Earl deceased, against the Oklahoma City-Ada-Atoka Railway Company, to recover damages for personal injury resulting in death. From a judgment of the court sustaining a demurrer to the evidence, plaintiff appeals.
Affirmed.
Taylor Irwin & Irwin, of Dallas, Tex., and James W. Pipkin, of Seminole, for plaintiff in error.
O. E Swan, of Muskogee, for defendant in error.
This is an action filed by Josephine Earl, administratrix of the estate of Joe Earl, to recover for the alleged wrongful death of Joe Earl, which was asserted to have been caused by negligence of defendant railway company.
Joe Earl, hereafter referred to as decedent, was a section foreman of a crew of five men including himself. The section was known as section 8. The crew reached the tool house at Tirola, Oklahoma, where they congregated to go to their work at approximately 7:30 A. M. June 10, 1937. They had placed their motor car on the track preparatory to leaving for the repair of a rail on the right-of-way when a freight train bearing a construction crew and the road master, Hawkins, was sighted. They took their motor car off to let the train go by. The road master approached and directed them to place their motor car back on the track and proceed north in front of the freight train to Salt Creek where there was a washout and there assist in the repair of the damage. They placed the motor car back on the right-of-way and went north toward the Salt Creek washout and had reached the crossing on mile 71 when the motor car driven by Luther Rivers overturned and the accident which resulted in the death of the decedent occurred when the motor car struck an accumulation of sand on the track. At the conclusion of the evidence offered by the plaintiff the court sustained a demurrer to the evidence.
The specific act of negligence alleged is that the railway company breached its duty to Joe Earl and was negligent toward him by reason of its failure to provide and maintain a reasonably safe roadbed and railway tracks from Konowa Okla., to Salt Creek and to provide a reasonably safe motor car for such trip. The evidence in this regard deals with two specific things: (1) Unsafe motor car; (2) unsafe condition of the track caused by an accumulation of sand on the rails at the place of the accident. The evidence discloses that this accumulation of sand was on section 8, the strip of road patrolled and supervised by this section crew. When they left Tirola decedent, together with two other members of the crew, sat on the front of the motor car where they could watch out for any obstruction or defects in the track. As stated above Luther Rivers, another member of the crew, was engaged in driving the motor car. The first allegation of error, to-wit, that the motor car was unsafe in that it had faulty brakes can be disposed of at once. No witness testified that the motor car had faulty brakes and at least one of the witnesses on direct questioning stated that the motor car had good brakes. It will therefore be seen that the only evidence offered or suggested on the point of defective brakes on said motor car disclosed without contradiction that the motor car was in good condition.
That leaves for our sole consideration the accumulation of sand on the tracks. Plaintiff contends that the accumulation of sand discloses negligence because the crew was ordered to proceed rapidly over the road; that it was directed to proceed in front of a freight train; that it was directed to go to a definite place to fix a given point of trouble, which place was off the section of the decedent and his crew. The evidence is uncontradicted that the Salt Creek washout was not on section 8 but was on another section. The night preceding the washout, there has been a very heavy, if not unprecedented, rain from Tirola to Salt Creek.
The knowledge or ability of the defendant to know of the unsafe condition of the track must therefore determine whether or not there is any negligence chargeable to the defendant. It is argued that the order to proceed rapidly ahead of the train led to two dangers for which defendant was responsible: (1) Being in front of a freight train necessitated going fast to avoid being run over; (2) both the going fast and the direction of the master to reach the given point rapidly or as speedily as possible prevented a survey of the danger ahead which included the accumulation of sand.
It is not disclosed by the testimony of any witness that the decedent or his crew was directed to proceed fast in order to stay ahead of the freight train. On the...
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