Kan., O. & G. Ry. Co. v. Dillon

• Decision Date: 05 May 1942
• Docket Number: Case Number: 30322
• Citation: 1942 OK 174,135 P.2d 498,191 Okla. 671
• Parties: KANSAS, O. & G. RY. CO. v. DILLON, Adm'x.
• Court: Oklahoma Supreme Court

1942 OK 174

135 P.2d 498

191 Okla. 671

KANSAS, O. & G. RY. CO. v. DILLON, Adm'x.

Case Number: 30322

Supreme Court of Oklahoma

Decided: May 5, 1942

Syllabus

¶0 1. TRIAL--Motion for directed verdict--Consideration.

It is the duty of the trial court when ruling on motion for directed verdict, at the close of all evidence, to disregard all evidence unfavorable to the party against whom the verdict is sought, as well as incompetent evidence, and concede to be true all evidence supporting the view of the party against whom the motion is made. When this has been done, unless no recovery can be had on any view of plaintiff's evidence, the case should be left to the jury.

2. NEGLIGENCE--Burden of proof--Circumstantial evidence.

In a civil case, all the plaintiff is required to do in order to establish his claim is to make it appear to be more probable that the injury came in whole or in part from the defendant's negligence than from any other cause, and this fact may be established by circumstantial evidence and the reasonable inferences to be drawn therefrom.

3. NEGLIGENCE--Question for jury as to which of several probable causes produce injuries.

Where there is doubt as to which of several probable causes produced the injuries, the cause of the injuries is properly a question for the jury.

4. MASTER AND SERVANT--Assumption of risks under Federal Employers' Liability Act-Knowledge of danger.

Under the Federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916 §§ 8657-8665]), the servant assumes all the ordinary risks of his employment which are known to him, or which could have been known to him by the exercise of ordinary care to a person of reasonable prudence and diligence in like circumstances. Risks not naturally incident to the occupation, but which arise from the negligence of the master, are not assumed by the servant until he becomes aware of such negligence and of the risk arising therefrom, unless the negligence and risk are so apparent and obvious that an ordinarily careful person would observe the one and appreciate the other. Whether the risk is an ordinary risk known to the servant, or with knowledge of which he is chargeable, is a question of fact to be submitted to the jury.

5. EVIDENCE--Admissibility of statements as part of res gestae.

The question of admissibility of statements as a part of the res gestae is largely determined by the facts and circumstances of each case, and should be in a great measure left to the determination of the trial court.

Appeal from District Court, Pontotoc County; Tal Crawford, Judge.

Action to recover damages for wrongful death by Mrs. Jessie L. Dillon, administratrix of the estate of William E. Dillon, deceased, against the Kansas, Oklahoma & Gulf Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

O. E. Swan, C. A. Conway, Charles P. Gotwals, James D. Gibson, and F. T. McGraw, all of Muskogee, for plaintiff in error.

Moss & Young, of Tulsa, for defendant in error.

CORN, V. C. J.

¶1 This is an action for the wrongful death of William E. Dillon, brought by his wife, Jessie L. Dillon, as administratrix of the estate of said deceased, against the Kansas, Oklahoma & Gulf Railway Company. Verdict and judgment were awarded the plaintiff in the sum of $13,500, and the railway company appealed. The parties are referred to herein in the order of their appearance in the trial court.

¶2 The deceased was employed as a brakeman and was engaged in a switching operation at the time of receiving his fatal injuries. It is alleged that on March 20, 1939, at about 8 p.m., the defendant was operating its freight train No. 60 over its sidetracks in the town of Allen in Pontotoc county, Okla., and was at the time of the accident spotting some oil tank cars on a sidetrack at said station. The deceased boarded the first car that was detached and shunted down the siding in order to apply the breaks and stop the car at the desired location. Following this car a number of other cars were detached and shoved down the track with considerable speed, and while the deceased was applying the brakes and bringing his car to a stop, these cars were permitted to run against the car on which deceased was riding with such force and violence as to knock him off of the car onto the tracks in front of it, said car running over his body and amputating one foot and badly mangling the other. As a result of these injuries, he died two days later.

¶3 The defendant, in its first assignment of error, complains that the trial court erred in overruling the demurrer to the plaintiff's evidence and in refusing to instruct the jury to return a verdict for the defendant.

¶4 Under this assignment of error the defendant advances four propositions as barring recovery: (1) That there is no proof of negligence; (b) that there is no proof that the negligence charged caused the accident; (c) that negligence on the part of Dillon bars recovery; and (d) that the deceased assumed the risk as a matter of law.

¶5 The accident occurred just after dark and there was no eyewitness to it. The evidence, therefore, is largely circumstantial, and this fact is the basis of the defendant's argument that there is no proof of negligence, nor proof that the negligence charged caused the accident.

¶6 Cases are cited wherein the evidence was held insufficient to sustain the verdict and wherein the facts were to some extent analogous to the facts in this case. But we deem the evidence in this case sufficient to go to the jury.

¶7 The train crew consisted of an engineer, fireman, conductor, and head brakeman or "list man," who was in control of the switching operations, and two other brakemen, including the deceased. In his work he was subject to the orders and under control of the conductor, R. M. Jones, and the head brakeman, Charles Chapman. The train reached this station about dark, and consisted of the engine and tender and twelve cars, ten of which were empty. After some preliminary movements a car was switched from the train down the main line of the tracks, and the deceased rode this car a distance of 300 to 350 feet to near where a dirt road crossed over the tracks. Immediately east of the main line was storage track No. 1, which paralleled the main line some 3,600 to 3,800 feet and immediately east of that was storage track No. 2, which switched off of storage track No. 1 about 50 or 60 feet at each end within the points of its connection with the main line. After he had stopped and gotten off of the car he had ridden down the main line, an empty tank car was switched on to track No. 2 from the north, and was allowed to drift down the same. James N. Covalt, the other brakeman, saw a lantern cross over from the car deceased had ridden down the main line to track No. 2, and saw the lantern go upon the south end of the drifting c ar, which continued to move a long way down the track. Then nine empty cars were kicked onto track No. 2 and were allowed to drift unattended. This was about three minutes after the first car was kicked onto track No. 2, on which deceased was riding. Then five more cars were switched onto the same track and Covalt stopped them near the dirt road crossing, which was not a great distance from the north end of the track where they were switched on. The conductor, R. M. Jones, testified that he was not present during any of the switching, but had been to the depot making up a list and on other business, and as he came northward from the depot he was walking between storage track No. I and No. 2, and. had met the first car shunting down track No. 2 unattended, traveling about twelve miles an hour and about 1,600 to 1,800 feet from each end of said track. He mounted the car and by use of the brakes was able to bring it to a stop within about 15 car lengths. He left the car and started forward and met the nine cars unattended and traveling about the same rate of speed and about 15 car lengths behind the first car he had just stopped. He mounted said cars and brought them to a stop, and did so without crashing into the first car, barely touching the same and with practically no noise. He started on northward and when he discovered there were only two lanterns in sight he began to look for Dillon, and within four or five minutes found him lying between tracks I and 2 with one foot cut off and the other practically so. He talked to Dillon for only a second, and then hurried back, a distance of about 1,800 feet, and was gone about ten to fifteen minutes. Dillon was still lying in the same position and was suffering from wounds. Immediately when he returned he asked him how he got hurt and Dillon replied, "I got knocked off that car," and he asked him which car, and Dillon said "the first car," and he asked him if it was the first car that came down track No. 2, and he said "Yes." The testimony showed that some of these cars could be stopped in a shorter distance than others because of the weight and condition of brakes.

¶8 The witness Claude Gill testified that he lived about 200 to 300 feet east of track No. 2, and that he heard an unusual crash between the cars in the switching yard, and immediately after the crash he heard a masculine voice moaning and hollering.

¶9 The tracks were slightly down grade in the direction the unattended cars were moving, and they were moving at an accelerated speed when Jones came along and stopped them. The accident had already occurred some distance up the track.

¶10 Under all the facts and circumstances shown, the probabilities of the case are most favorable to the plaintiff's theory of how the accident happened, to wit, that Dillon was slowing his car down preparatory to stopping when the pursuing string of cars rammed it from the rear and knocked him off and shunted it on down the track ahead of the other cars. From these facts may be drawn the reasonable inference and conclusion that the deceased received his injuries by reason...