Hines v. Pershin

• Decision Date: 22 May 1923
• Docket Number: 11138.
• Citation: 215 P. 599,89 Okla. 297,1923 OK 289
• Parties: HINES, DIRECTOR GENERAL OF RALLROADS, ET AL. v. PERSHIN ET AL.
• Court: Oklahoma Supreme Court

215 P. 599

89 Okla. 297, 1923 OK 289

HINES, DIRECTOR GENERAL OF RALLROADS, ET AL. v. PERSHIN ET AL.

No. 11138.

Supreme Court of Oklahoma

May 22, 1923

Syllabus by the Court.

Where a person employed as yard janitor in railway yards is struck by a switch engine, held, that failure of the railway company to place an employee on the lookout to warn such yard janitor of approaching danger, and the failure of said railway company to give warning to said yard janitor as to the movement of its engines or trains in said yards, does not constitute primary negligence on the part of said railway company.

The proper practice to challenge the sufficiency of a petition is by demurrer, and, where the sufficiency of a petition is challenged solely by an objection to the introduction of evidence thereunder, such objection, not being favored by the courts, should generally be overruled, unless there is a total failure to allege some matters essential to the relief sought.

Where defendant railway company offered testimony as to the duties of employees in the railway yards of said company held, the admission on motion of plaintiff of certain rules from the printed book of rules of said company rebutting said evidence was not error.

Instructions of the trial court examined, and held, that the same improperly stated the law applicable to the case at bar.

Appeal from District Court, Adair County; E. B. Arnold, Judge.

Action by Lizzie Pershin and Frank Pershin and others, by Lizzie Pershin and next friend, against Walker D. Hines, Director General of Railroads, and another. From a judgment for plaintiffs, defendants appeal. Reversed and remanded.

James B. McDonough, of Ft. Smith, Ark., for plaintiffs in error.

Chas Wilson, of Westville, for defendants in error.

MASON J.

This action was commenced by the defendants in error in the district court of Adair county, Okl., to recover damages for the wrongful death of W. M. Pershin, husband and father of said defendants in error, alleged to have happened in the railway yards of plaintiffs in error, at Watts, Okl., by reason of negligence of plaintiffs in error, while the said W. M. Pershin was in the employ of said plaintiffs in error as a yard janitor. From a judgment in favor of defendants in error in the sum of $2,995, the plaintiffs in error have presented this appeal.

For convenience the parties will hereafter be referred to as "plaintiffs" and "defendants," respectively, as they appeared in the trial court.

For reversal it is first contended that:

"The court erred in overruling the objection of the defendants to the introduction of any evidence, which objection was made at the first offer to introduce evidence in the cause." We will therefore examine the petition to ascertain whether or not it contains allegations sufficient to constitute a cause of action as against this mode of attack. The allegations of the petition regarding the acts of negligence complained of are substantially as follows: That, on the 18th day of October, 1918, said W. M. Pershin, now deceased entered upon his duties as such yard janitor; that while performing his said duties at the town of Watts, Adair county, Okl., at said division point, and in said switchyards of said railway company, by and through the negligence and carelessness of said railway company and its servants, a switch engine, under control of the fireman, was negligently and carelessly, and without any lookout, backed without any warning against and upon the body of W. M. Pershin, and the said W. M. Pershin was thereby killed; that it was the duty of the defendant railway company to keep a lookout for servants in said switchyard; that defendants' railway company failed to perform said duty or give any warning; that because of said negligence said W. M. Pershin was killed by defendants' agents and servants negligently moving said engine.

Was it a duty of the defendants to keep a lookout for and give warning to employees in the yards at the time the deceased was injured?

In 1 White's Personal Injuries on Railroads to Employees, § 328, p. 434, it is said:

"A marked distinction is recognized by the best-considered cases between the obligation of the railroad company toward third parties and that existing toward its own employees, with reference to the necessity of giving warning or notice of the movement of its trains in its own yards, or at places where the business of railroading requires the constant or frequent movement of trains or engines. Where the public are expected to be using the track or right of way, due care requires notice of the movement of trains, for strangers may be present who do not know of the perils of the situation. With the company's employees, however, there is held to be no duty to give warning of the movement of trains, as this is the very object of the employment in which the employee is engaged, and a risk incident to the service, which he is held to assume under his contract of employment. Employees about railroad yards are not like strangers or third parties; they understand the situation; they know the manner of doing the business, and that cars frequently pass without notice of their approach, and the danger of being struck by a backing engine or car is a risk incident to the business as carefully conducted, and a peril of the employment."

In 2 Bailey on Personal Injuries, § 2727, p. 918, it is said:

"Employees of a railroad company are presumed to contract with reference to the hazards incident to the service. It is not the duty of such a company to place an employee on the lookout to warn others of approaching danger. It is their duty, without warning, to observe due care, and this is a part of their undertaking, and any omission is at their peril. Hence it was held not negligence per se to back a train without providing a watchman on the rear car to warn a switchman of danger."

In 3 Elliott on Railroads (2d Ed.) § 1283, p. 629, it is said:

"The general rule is that, where the danger is an extraordinary one, that is, a danger not ordinarily incident to the service, and the employee has knowledge of such danger, he is guilty of negligence if he fails to warn the employee. Where, however, the danger is obvious to a person of ordinary intelligence and one that can be known and appreciated by a person who exercises ordinary prudence and care, or where it is not an extraordinary peril, but is one incident to the service, there is no duty to give warning unless the person employed has not reached the years of discretion. Where the danger is open to the observation of a person of ordinary intelligence, the general rule is that the employer is not guilty of negligence in failing to give the employee warning of such danger, since the risk is assumed by the employee."

In Crowe v. N.Y. C. & H. R. R. R. Co., 70 Hun, 37, 23 N.Y.S. 1100, it is said:

"Great care and precaution are required on the part of railroad companies when they are moving cars in places where the general public have a right to pass, to in some manner announce their approach; but a different rule obtains in the companies' yards, where cars are being distributed and trains made up. The employees about such yard understand the situation; they know the manner of doing the business therein; that cars frequently pass along without notice of their approach; and they assume the risks incident to the business as thus conducted."

In Unfried v. Baltimore & O. R. R. Co., 34 W.Va. 260, 12 S.E. 512, it is said:

"* * * And we find in Patterson on Railway Accident Law (page 343, § 316) the author says: 'There is no implied obligation on the part of the master to indemnify the servant against the ordinary risks of the service. * * * And upon this principle train hands take the risk of injury from the negligent movement of other trains, * * * from being struck by engines or cars moving in a railway yard, without notice or unattended.' "

In Aerkfetz v. Humphreys, 145 U.S. 418, 12 S.Ct. 835, 36 L.Ed. 758, Mr. Justice Brewer, in speaking for the court, said:

"At the time of the accident, plaintiff was working near the west end of the yard, when a switch engine pushing two cars moved slowly along the track upon which he was at work the speed of the engine being about that of a man walking. Plaintiff stood with

his back to the approaching cars, and so remained at work without looking backward or watching for the moving engine until he was struck and run over by the first car. Upon these facts we observe that the plaintiff was an employee * * * of long experience in that yard, he was familiar with the moving of cars forward and backward by the switch engine. The cars were moved at a slow rate of speed, not greater than that which was customary, and that which was necessary in the making up the trains. For a quarter of a mile east of him there was no obstruction, and by ordinary attention he could have observed

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