Gulf, C. & S. F. Ry. Co. v. Nail, Case Number: 20325

CourtSupreme Court of Oklahoma
Citation156 Okla. 294,10 P.2d 668,1932 OK 253
Docket NumberCase Number: 20325
PartiesGULF, C. & S. F. RY. CO. v. NAIL.
Decision Date05 April 1932

¶0 1. Negligence--Elements of Actionable Negligence.

In order to constitute actionable negligence there must exist a duty on the part of the party charged, and a failure of the party charged to perform that duty, and the existence of injury which is the proximate result of failure to perform such duty.

2. Same--Negligence Required to Be Proximate Cause of Personal Injury.

It is a well-established rule that in a suit for damages for personal injuries, although the defendant may be shown to have been negligent in some manner, yet, unless the negligence so shown was the proximate cause of the injury complained of, no recovery can be had on account of such negligence.

3. Same--Burden of Proof on Plaintiff.

To entitle plaintiff to recover damages in an action for negligence, he has the burden of proving by a preponderance of the evidence, negligence of defendants, and that the negligence alleged and proven was the proximate cause of his injury.

4. Same--Trial--Insufficiency of Plaintiff's Evidence as Against Demurrer.

A demurrer to plaintiff's evidence in a personal injury action ought to be sustained, unless it is reasonably apparent that the injury suffered by the plaintiff is the causal effect from some wrongful act of the defendant, in violation of a legal duty owing to the plaintiff.

5. Same--Negligence as Question of Law for Court.

The question of negligence or no negligence is one of law for the court, where but one inference can reasonably be drawn from the evidence.

Appeal from District Court, Love County; Asa E. Walden, Judge.

Action by Perry Nail against the Gulf, Colorado & Santa Fe Railway Company. Judgment for plaintiff, and defendant appeals. Cause reversed and remanded. with directions.

Rainey, Flynn, Green & Anderson, for plaintiff in error.

Sigler & Jackson and J. H. Hays, for defendant in error.


¶1 This is an appeal from the district court of Love county, Okla., wherein plaintiff, defendant in error herein, recovered judgment against defendant, plaintiff in error herein, in the sum of $ 5,000 and costs, for damages resulting from an injury received by said plaintiff on the 28th day of May, 1928, when a railway box car owned and operated by defendant through its employees struck plaintiff, knocked him down, and rolled over his foot, crushing it so that it was necessary for him to have it amputated.

¶2 The plaintiff predicated his claim to damages upon the alleged negligence of defendant's employees.

¶3 The testimony shows that the Gulf, Colorado & Santa Fe Railway Company's line runs north and south through the city of Marietta, Okla., and that Main street crosses it at right angles. There is more than one track at the point of crossing. The business part of the city and most of the residential part are west of the tracks; a substantial residential section lies east of them. South of the street crossing on the west side of the tracks is the passenger station, and just south of the street crossing on the east side of the tracks is the freight depot. Just north of the street crossing on the east side of the most eastern track is a pump house. This pump house is about 90 feet from the north edge of the street, and is about 8 feet from the east rail of the track. It faces west toward the track, and there is a door in its center. There is also a door on its north side. And there is a railing a few feet in front of it on its west side inclosing a flower bed. South of the pump house is a concrete water tank about four feet high and south of that is a flower garden, both of which are between the pump house and the street. Directly across from the pump and between the east track and the main line track is a steel water tank. Near this is a water crane. The east track is a side track which branches off from the main line some distance north of these improvements, runs down past a cotton platform, past the pump house and between it and the steel water tank across the street and in front of the freight depot where there is a loading platform. On the west side of these tracks, north of Main street and fronting upon it is the post office.

¶4 There was some conflict of testimony with respect to foot paths crossing these tracks north of the street crossing, and with respect to the number of persons using them, but it is clear that there were at least two paths used by a substantial number of persons for the purpose of crossing the right of way when going to and from the eastern part of town to the business district. There was one path starting from a point north of the street and near the post office and crossing the tracks to the north corner of the pump house then continuing in a northeasterly direction. There was another path starting from the street at its junction with the east track and proceeding on the east side of this track directly "up the switch" and in front of the pump house to the north corner of the pump house where it joined with the first described path.

¶5 The plaintiff, Perry Nail, testified that on the 28th day of May, 1928, the date of the accident, he went a short distance north from the post office, then crossed the tracks going beyond the east track; that he then turned back and started down the north and south path intending to go into the front door of the pump house. He testified that his purpose in going to the pump house was to sell someone in there his needles and deaf and dumb cards. He had moved only a few feet down the track when he was struck in the shoulder by the moving box car, was knocked down, and his foot was crushed. When struck he was about a foot or two feet from the track and had his back to the cars. He testified that he looked for cars when he crossed the tracks going east, that he thought he saw some box cars, but did not see any engine, and that the cars were not moving. He testified that when he turned back to go down the side of the track to the pump house door he did not look north for cars. He further said that there was no obstruction to prevent him from seeing the cars to the north had he looked. That he was deaf and dumb, and that he could not have heard the whistle of an engine nor the ringing of an engine bell, nor could he have felt the vibration of either.

¶6 On the day of the accident the train crew with defendant's train arrived in Marietta at about 7:40 in the morning, stopped south of Main street, then went up to the switch track here involved, moved in on it down to the freight depot, picked up some cars, pulled out onto the main track, switched out some cars, then moved back onto the switch track, intending to place some cars at the freight depot. As the train was backing south down this track toward the freight depot the plaintiff was struck.

¶7 At the time of the accident the train conductor was standing on the north end of the freight depot platform south of Main street; the engineer was at his post in the engine cab on the east side of the engine, the fireman was in the engine cab on the left side; the two brakemen were standing on the top of the rear car of the train. It was this car that struck plaintiff. Brakeman Allen was standing 6 or 7 feet from the end of the car, and Brakeman Whelock was standing 6 or 7 feet behind Allen. The engine had attached at this time seven cars; the whistle had been sounded for a crossing a block north but not for the Main street crossing; the bell was ringing; the train was moving 5 or 6 miles per hour. Brakeman Allen testified that he saw the plaintiff Nail just before the car upon which he was riding got to the pump house, that Nail was 10 or 15 feet from the track and was walking in a southwestern direction toward the track, and that the car was a car's length from Nail's position. He testified that he yelled, but that Nail paid no attention to him, and that he then gave the signal to stop the train. That the car was 3 or 4 feet, or "5 or 6 feet, maybe 4 or 5 feet" from Nail when he gave the signal. Brakeman Whelock testified that he also saw Nail when the car was a car's length away, and that he holloed and immediately gave the signal to stop. Other witnesses testified that the brakemen began yelling at Nail when the car was a car's length or half-car's length away from him. The conductor testified that the cars were 10 or 15 feet away from Nail when brakeman Allen gave the signal to stop, and that Allen gave the signal and called at about the same time. All of the witnesses agreed that there was no obstruction to prevent Nail from seeing the train. The engineer testified that part of the way down this switch track a slight curve interfered with his view down the east side of the train, but said that at the point where Nail was struck and for about two car lengths above it he could have seen Nail, but that he did not. That the first he knew he received the signal from Allen to stop; that this was about a half car's length from the point where Nail was struck. And that he applied the brakes immediately and stopped as soon as possible. The testimony is uniform that the train moved 60 to 80 feet beyond the point of the accident before it came to a stop. It is less uniform, but seems clear that the train was moved north after the accident to a position above that where Nail was found. There is some testimony with respect to the kind of brakes on the train, it being admitted by the train crew that the compressed air brakes for each car were not coupled, and that the brakes used in stopping the train were the "emergency" brakes; it was also admitted that these were not quite so effective, and that the train could have been stopped in a slightly shorter distance if the air brakes had been coupled. Many persons were attracted by the yelling, and Nail was found a few feet south of the west door of the pump house lying holding his leg with...

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