Lancaster v. St. Louis & S. F. Ry. Co.
| Decision Date | 04 October 1927 |
| Docket Number | 17621. |
| Parties | LANCASTER v. ST. LOUIS & S. F. RY. CO. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Dec. 23, 1927.
Syllabus by the Court.
No duty rests upon a railway company to maintain a lookout for employees engaged in a service which requires them to be in places of danger on or near the railway tracks or to give them warning of the movement of trains, and this is true whether the employment is such as to require the employee to be on or near the track at a particular place, known to the company, or at different places on or near the track. St L. & S. F. Ry. Co. v. Tyler, 107 Okl. 240, 232 P. 414.
As to employees, a railway company must exercise reasonable care to avoid an injury after the peril of the employee is discovered; but there is no duty to use reasonable diligence in order to discover the peril of the employee if the business of the railroad is conducted in a reasonable manner.
A demurrer admits the proof of all the evidence introduced, and all facts which it tends to establish, as well as every fair and reasonable inference, and should be overruled unless the evidence and all inferences which a jury could reasonably draw from it are insufficient to support a verdict for plaintiff. But, where the evidence fails entirely to show primary negligence, the court should sustain the demurrer and instruct a verdict in favor of the defendant. Buss v Chicago, R.I. & P. R. Co., 77 Okl. 80, 186 P. 729.
The record examined, and evidence fails to show primary negligence.
Commissioners' Opinion, Division No. 1.
Appeal from District Court, Carter County; A. C. Barrett, Judge.
Action by Myrtle Lancaster, as administratrix of Jordan Lancaster deceased, against the St. Louis & San Francisco Railway Company, to recover damages for the death of her husband. From a judgment sustaining a demurrer to plaintiff's evidence, she appeals. Affirmed.
Freeling & Howard, of Oklahoma City, for plaintiff in error.
Stuart Cruce & Franklin, of Oklahoma City, for defendant in error.
Jordan Lancaster, who had been employed by the Frisco Railway Company for about 11 years, was, on the 25th day of November, 1924, killed by collision between one of the trains of the Frisco and a motor car operated by Lancaster, who was at the time a section foreman in charge of Frisco tracks between Scullin and Sulphur. The collision occurred some 5 miles east of Sulphur, while Lancaster, together with one Roy, was traveling east on a motor car, engaged in his regular duty as section foreman. The train was backing from Scullin to Sulphur on its regular schedule, as it had been doing for same eight or nine months, because of a defective turntable at Sulphur.
At the time of the collision, the train consisted of three cars equipped with air brakes and regular crew, and the brakeman was standing on the back of the train and could have seen down the track in the direction the train was traveling some 300 yards. No signal nor warning of any kind was given except at about the time the collision occurred, at which time brakes were applied and the train was stopped in about 75 yards. The train was traveling at the rate of 18 miles an hour, and was engaged in both interstate and intrastate business at the time.
The court sustained the demurrer to the evidence, and instructed the jury to return a verdict in favor of the defendant. A motion for a new trial was overruled, and exceptions saved, and the cause comes to this court for reversal of said order. It is admitted that the action is brought and that the case is governed by the federal Employers' Liability Act (45 USCA §§ 51-59; U.S. Comp. St. §§ 8657-8665).
It is an established rule that a railway company owes no duty to its employees to keep a lookout on its moving trains, or to ring a bell or blow a whistle in order to warn employees of danger. St. L. & S. F. Ry. Co. v. Tylor, 107 Okl. 240, 232 P. 414; Hines v. Pershin, 89 Okl. 297, 215 P. 599; Buss v. Chicago, R.I. & P. Ry. Co., 77 Okl. 80, 186 P. 729; Aerkefetz v. Humphreys, 145 U.S. 418, 12 S.Ct. 835, 36 L.Ed. 758; and many other cases.
Under this well-established rule there can be but one question presented in this appeal, to wit, whether the employees of the railway company, after actually discovering the danger of Lancaster, used reasonable diligence in attempting to prevent the accident.
The train was being operated practically on its regular schedule and there is no testimony showing any carelessness or negligence on behalf of the company in the operation of said train, other than its failure to keep a lookout or to give warning, which under our law, is not required for the protection of employees. It follows that the railroad company cannot be held liable in this case unless, from the testimony, they were negligent after discovering the...
To continue reading
Request your trial