Littlejohn v. Midland Valley R. Co.

• Decision Date: 13 April 1915
• Docket Number: Case Number: 3976
• Citation: 1915 OK 174,148 P. 120,47 Okla. 204
• Parties: LITTLEJOHN v. MIDLAND VALLEY R. CO.
• Court: Oklahoma Supreme Court

1915 OK 174

148 P. 120

47 Okla. 204

LITTLEJOHN v. MIDLAND VALLEY R. CO.

Case Number: 3976

Supreme Court of Oklahoma

Decided: April 13, 1915

Syllabus

¶0 1. NEGLIGENCE--Question for Jury--Evidence--Variable Standard of Duty. What is and what is not negligence is generally a question for the jury, and not for the court. Where the standard of duty is not fixed, but variable, and shifts with the circumstances of the case, it is incapable of being determined as a matter of law, and where there is sufficient evidence, it must be submitted to the jury to determine what it is, and whether it has been complied with.

2. SAME--Question for Court--Fixed Standard of Duty. On the other hand, when the standard is fixed, when the measure of duty is defined by law, and is the same under all circumstances, its omission is negligence and may be so declared by the court.

3. NEGLIGENCE-- Personal Injuries--Demurrer to Evidence. In an action for damages for personal injury, charged to have been caused by negligence, the court should not sustain a demurrer to the evidence and withdraw the case from the jury, unless, as a matter of law, no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish.

4. NEGLIGENCE--Question for Jury--Evidence. Where, from the facts shown by the evidence, although undisputed, reasonable men might draw different conclusions respecting the question of negligence, such question is properly for the jury.

5. NEGLIGENCE--Injury to Child--Attractive Places--Dangerous Instrumentalities--Question for Jury. Where a child four and one-half years old was injured by the fall of a large and heavy iron flywheel, upon which it had climbed while at play upon a depot platform, and where said wheel had been left upon said platform for two weeks or more, unguarded and unprotected, at a place where children had, with knowledge of defendant's station agent, been accustomed to play, whether the wheel which caused the injury, or the station platform upon which it was left, was sufficiently attractive to allure children into danger; or whether the wheel, where and in the position and manner in which it was left, was dangerous; or whether left in a dangerous position in an attractive place, known to be frequented by children; and whether the situation was such as to suggest to the railroad company the probability of accident; and whether the company was negligent--are questions of fact for the consideration of the jury.

Error from District Court, Osage County; R. H. Hudson, Judge.

Action by James O. Littlejohn against the Midland Valley Railroad Company, a corporation. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

See, also, 44 Okla. 8, 143 P. 1.

H. P. White, for plaintiff in error.

George S. Ramsey, Edgar A. de Meules, and Farrar L. McCain, for defendant in error.

SHARP, J.

¶1 The plaintiff below, James O. Littlejohn, the father of Jesse Littlejohn, sought by his action against the defendant in error to recover damages for injuries sustained by his said son on account of the alleged negligent, wanton, and careless acts of the railroad company in placing and leaving upon its freight depot platform in the town of Foraker a large iron flywheel about 30 inches in diameter, and weighing about 365 pounds. The petition charged that for about two weeks prior to July 25, 1910, the said wheel was negligently, wantonly, carelessly, and knowingly allowed and permitted to remain standing on its flange on said depot platform without guard, chock, prop, or stay to prevent its falling, in total and reckless disregard of danger to the public occasioned thereby; that said wheel was left standing near the door opening into the freightroom of the depot, unguarded and unprotected, and in said position was attractive and enticing to children, and an invitation to them to play therewith, and constituted an attractive nuisance; that children were accustomed to play about said depot and upon and about said flywheel with the knowledge and consent of the defendant; that on the 25th day of July, 1910, the said Jesse Littlejohn, at the time four and one-half years of age, accompanied by his brother, seven and one-half years of age, was attracted and enticed by said flywheel, and went upon the platform of said depot to play upon and about it, and while in the act of climbing upon said wheel, in the position and surroundings heretofore stated, the said flywheel fell upon the said Jesse Littlejohn and crushed and severely injured his left foot. Plaintiff's action is to recover in his own right for doctor's bill, nursing and caring for said child, medicines, loss of time from work, and loss of service and earnings respectively expended and sustained by him on account of said injury. At the trial the court sustained a demurrer to the plaintiff's evidence, discharged the jury, and entered a judgment for the defendant for its costs. The question presented for our consideration is, whether or not the trial court erred in sustaining the defendant's demurrer, and in not submitting the case to the jury.

¶2 In Midland Valley R. Co. v. Littlejohn, 44 Okla. 8, 143 P. 1, in an opinion by Thacker, C., a judgment in favor of Jesse Littlejohn, for damages sustained by him on account of said injury, was reversed and remanded for a new trial.

¶3 Plaintiff's action involves an application of the doctrine of attractive nuisance.We have carefully read the testimony, and while it does not appear that all of the allegations of the amended petition were proven, there was, in our judgment, sufficient evidence of actionable negligence to take the case to the jury. The wheel was an item of freight, and had been allowed to remain on the station platform near the door of the freightroom for two weeks or more. At times the wheel was permitted to lean against the wall of the depot, at other times it stood erect on the platform, and at still other times it lay flat on the platform. At no time, so far as the testimony shows, was the wheel guarded, chocked, or propped. There was evidence tending to show that at the time of the accident it stood in an upright position on the platform. A number of witnesses testified that they had seen children playing on or about the depot platform on many occasions prior to the accident, and there is some evidence tending to prove that this fact was known to the station agent. That the wheel in the position in which it was left was dangerous is shown by the fact of the injury, caused by Jesse Littlejohn attempting to climb upon it. Whether a machine be dangerous and known to be such, and whether it be left in an attractive place, known to be frequented by children of tender years, and whether the proprietor of the premises be guilty of negligence in leaving it in a dangerous position, unprotected in some suitable manner, are questions of fact. It is well settled that what is or what is not negligence in a particular case ordinarily is a question for the jury, and not for the court. Missouri, K. & T. R. Co. v. Shepherd, 20 Okla. 626, 95 P. 243; Harris v. Missouri, K. & T. R. Co., 24 Okla. 341, 103 P. 758, 24 L. R. A. (N. S.) 858; Dewey Portland Cement Co. v. Blunt, 38 Okla. 182, 132 P. 659; Gulf, C. & S. F. R. Co. v. Ellis, 54 F. 481, 4 C. C. A. 454.

¶4 When the standard of duty is not fixed, but variable, and shifts with the circumstances of the case, it is in its very nature incapable of being determined as a matter of law, and, where there is sufficient evidence, must be submitted to the jury to determine what it is, and whether it has been complied with. O'Neil v. East Windsor, 63 Conn. 150, 27 A. 237; McCully v. Clarke, 40 Pa. 406, 80 Am. Dec. 584; Baker v. Westmoreland & C. Nat. Gas Co., 157 Pa. 593, 27 A. 789.

¶5 On the other hand, when the standard is fixed, when the measure of duty is defined by the law, and is the same under all circumstances, its omission is negligence and may so be declared by the court. Savannah, F. & W. R. Co. v. Evans, 115 Ga. 315, 41 S.E. 631, 90 Am. St. Rep. 116; Heimann v. Kinnare, 190 Ill. 156, 60 N.E. 215, 52 L. R. A. 652, 83 Am. St. Rep. 123; Newhard v. Pa. R. Co., 153 Pa. 417, 26 Atl. 105, 19 L.R.A. 563; Kilpatrick v. Grand Trunk R. Co., 72 Vt. 263, 47 A. 827, 82 Am. St. Rep. 939; Patten v. Chicago & N. R. Co., 32 Wis. 524.

¶6 Questions of negligence do not become questions of law, to be decided by the court, except where the facts are such that all reasonable men must draw the same conclusion from them, and the case should not be withdrawn from the jury unless the conclusion follows, as a matter of law, that no recovery can be had upon any view which can properly be taken of the facts the evidence tends to establish. Anthony v. Bliss et al., 39 Okla. 237, 134 P. 1122; Gardner v. Michigan Cent. R. Co., 150 U.S. 349, 361, 14 S. Ct. 140, 37 L. Ed. 1107; Kreigh v. Westinghouse & Co., 214 U.S. 249, 29 S. Ct. 619, 53 L. Ed. 984; Grand Trunk R. Co. v. Ives, 144 U.S. 408, 12 S. Ct. 679, 36 L. Ed. 485.

¶7 Nor is the rule influenced by the fact that there is no conflict worthy of consideration in the evidence. As has been held by this court in a number of cases, although the facts shown by the evidence be undisputed, yet if reasonable men might draw different conclusions respecting the question of negligence or contributory negligence, such questions are properly for the jury. San Bois Coal Co. v. Janeway, 22 Okla. 425, 99 P. 153; St. Louis & S. F. R. Co. v. Copeland, 23 Okla. 837, 102 P. 104; Clark v. St. Louis & S. F. R. Co., 24 Okla. 764, 108 P. 361; Mean v. Callison, 28 Okla. 737, 116 P. 195; Enid City R. Co. v. Webber, 32 Okla. 180, 121 P. 235, Ann. Cas. 1914A, 569; St. Louis & S. F. R. Co. v. Williams, 31 Okla. 450, 122 P. 152.

¶8 In the jurisdictions where the attractive nuisance doctrine is recognized, whether or not the particular premises are sufficiently attractive to entice children into danger, and whether a certain machine is...