Kurn v. Cochran

• Decision Date: 09 November 1937
• Docket Number: 27370.
• Citation: 73 P.2d 433,181 Okla. 205,1937 OK 646
• Parties: KURN et al. v. COCHRAN et al.
• Court: Oklahoma Supreme Court

73 P.2d 433

181 Okla. 205, 1937 OK 646

KURN et al. v. COCHRAN et al.

No. 27370.

Supreme Court of Oklahoma

November 9, 1937

Syllabus by the Court.

1. A railroad company will not be liable for an accidental death alleged to have been caused by the negligence of its employees in the operation of one of its trains, where there is a total lack of positive evidence of negligence, or of facts and circumstances from which such negligence can be inferred.

2. A demurrer to the plaintiffs' evidence in such an action should be sustained unless it is reasonably apparent from the evidence that the death was caused by some wrongful act of the defendant's agent or servants in violation of a legal duty owing to the decedent; and the mere fact that the deceased was killed carries with it no presumption of negligence.

3. Where, in an action involving such a question of negligence there is a failure to make out a case of primary negligence or to prove a causal relation between such negligence and the alleged wrongful death, and the jury returns a verdict for the defendants, it is error for the trial court to sustain a motion for new trial.

Appeal from District Court, Muskogee County; Enloe V. Vernor, Judge.

Action by Elsie Cochran and Ernest Cochran, minors, by Bama Nichols their next friend, against J. M. Kurn and another, trustees of the St. Louis & San Francisco Railway Company. From a judgment granting the plaintiffs a new trial, the defendants appeal.

Judgment reversed and cause remanded with directions to vacate order sustaining motion for new trial, overrule motion, and render judgment for defendants.

Cruce Satterfield & Grigsby, of Oklahoma City, for plaintiffs in error.

Forrester Brewster, of Muskogee, and Watts & Watts, of Wagoner, for defendants in error.

CORN Justice.

This is an appeal from a judgment of the district court of Muskogee county, granting the defendants in error, plaintiffs below, a new trial after the case had been submitted to the jury under instructions from the court and the jury had returned a verdict for the plaintiffs in error, defendants below. For convenience, the parties will hereafter be referred to as they appeared in the trial court.

This action was begun by the plaintiff, as next friend of Elsie and Ernest Cochran, minors, to recover damages for the alleged wrongful death of their uncle. The petition alleged a public custom in the vicinity of using the defendants' right of way as a means of foot travel, and that while walking along the track he was struck and killed by the defendants' motor train, at a point where the track was straight and the view uninterrupted, his death being the direct result of the negligent and careless operation of the train by the defendants' employees.

The issues were joined and the cause was tried October 29, 1935. The plaintiffs introduced their evidence, whereupon the defendants interposed a demurrer which was overruled. The defendants declined to put on any evidence and elected to stand on their demurrer. The jury returned a verdict for the defendants and the plaintiffs then filed a motion for new trial which was granted by the trial court without stating the grounds upon which it was sustained.

It is from this ruling of the trial court that the defendants have appealed, setting up five assignments of error as grounds for reversal, and arguing all assignments under two propositions submitted in the appeal brief.

The first proposition urged by the defendants is that the trial court committed error in overruling the defendants' demurrer to the plaintiffs' evidence, for the reason that the plaintiffs wholly failed to show any actionable negligence on the part of the defendants' employees in operating the train. In this connection the defendants insist that the plaintiffs' evidence was based wholly upon inferences that had to be drawn by the court and jury; that the deceased was killed by the defendants' train; that he was on the track when killed; that the agents and employees of the defendants failed to give any warning or keep a reasonable lookout; and that they failed to keep the train under reasonable control in order to prevent injury after seeing the deceased upon the track.

Past decisions from this court announce the rule that the mere fact that an injury occurs carries with it no presumption of negligence, but rather it is an affirmative fact for the injured party to establish that the defendant has been guilty of negligence. See St. Louis & S. F. Ry. Co. v. Fick, 47 Okl. 530, 149 P. 1126; Chicago, R.I. & P. Ry. Co. v. Tate, 57 Okl. 215, 156 P. 1182; St. Louis & S. F. Ry. Co. v. Milburn, 106 Okl. 80, 232 P. 930; Atchison, T. & S. F. Ry. Co. v. Phillips, 158 Okl. 141, 12 P.2d 908; Chicago, R.I. & P. Ry. Co. v. Smith, Adm'x, 160 Okl. 287, 16 P.2d 226, and cases cited therein.

The question for determination then, under the first proposition, is whether there was a showing of primary negligence on the part of the plaintiff sufficient to justify the trial court in overruling the defendants' demurrer. The petition alleged the negligent and careless operation of the defendants' motor train and the resulting death of the deceased and depends upon the rule announced by this court in the past that where there is an accident resulting in the death of persons connected therewith and there is no direct and positive proof as to how it happened, the manner of occurrence may be shown by circumstantial evidence from which the jury may infer the manner and cause of such accident, if such inference is a reasonable one.

Although this rule has often been applied by this court in the past we cannot hold that it is to be an absolute criterion in all cases where there is no direct proof. Even though certain inferences were to be drawn from the evidence by the...