Lowden v. Friddle
| Citation | 117 P.2d 533,189 Okla. 415,1941 OK 297 |
| Decision Date | 30 September 1941 |
| Docket Number | 29964. |
| Parties | LOWDEN et al. v. FRIDDLE. |
| Court | Oklahoma Supreme Court |
As Amended Oct. 13, 1941.
Syllabus by the Court.
1. No recovery can be had against negligent defendant unless negligence shown is proximate cause of injury complained of.
2. Where all of the evidence favorable to plaintiff, together with all inferences and conclusions to be reasonably drawn therefrom, is insufficient to point out clearly a causal connection between the alleged negligence of defendant and plaintiff's injury, and where no element of willful or intentional wrong is present, it becomes a matter of law for determination by the court whether a verdict necessarily finding the alleged negligence to be the proximate cause of the injury finds sufficient support in the evidence, because it is an established rule in this state that a verdict based on speculation and conjecture will not be permitted to stand.
3. To constitute actionable negligence, where the wrong is not willful and intentional, three essential elements are necessary: (1) The existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) failure of the defendant to perform that duty; and (3) injury to the plaintiff resulting from such failure.
4. The burden is upon the plaintiff, in an action to recover damages for an injury caused by alleged negligence, to show the existence of the negligence, and that the negligence was the proximate cause of the injury.
Appeal from Superior Court, Seminole County; Otis H. Presson, Judge.
Action by Iza Friddle against Frank C. Lowden and others, trustees of the estate of the Chicago, Rock Island & Pacific Railway Company, and others, to recover damages for the death of plaintiff's husband allegedly caused by negligence of the railway company. From a judgment in favor of plaintiff defendants appeal.
Judgment reversed and cause remanded for a new trial.
W. R Bleakmore, W. L. Farmer, John Barry, and Robert E. Lee, all of Oklahoma City, for plaintiff in error.
Wells & Spurr, of Seminole, for defendant in error.
Frank O. Lowden et al., trustees of the Estate of the Chicago, Rock Island and Pacific Railway Company, appeal from a judgment of the Superior Court of Seminole County, based on the verdict of a jury, in favor of Iza Friddle. Iza Friddle, as plaintiff representing herself and children, the survivors of Garrett Friddle, deceased, brought an action against appellants hereafter called company, to recover damages for the alleged wrongful death of deceased alleged to have been caused by the negligence of company.
Friddle was found dead beside the tracks of company within the city limits of Seminole. From the record the following is known: Friddle left the home of Pinion, in the East end of Seminole (whether North or South of the tracks is not shown) somewhere around 9:00 or 9:30 p. m., to proceed to his home, stated to be about one mile West of company's depot and a "little North of the tracks." His avowed purpose was to go home. There is evidence that he sometimes went to company's tracks or right of way in the vicinity of the depot and proceeded thence West along the tracks and right of way until he desired to leave them to turn North to his home. There is an abundance of evidence that the public continuously and notoriously used the company's tracks and right of way at the depot and West of there to walk upon and along and to cross over. Somewhere between 10:00 and 11:00 o'clock p. m., his body was found lying partly inside and partly outside the rails of the main line of track, mangled as though passed over by a train. It is also shown that a fast, through freight passed through Seminole headed West about 9:48 p. m. There was no eyewitness to the incident. The engine crew testified they did not see anyone upon or near the tracks, except the depot agent and a man and woman; and the depot agent testified that other than a man and woman standing on the depot platform he saw no one else. He testified that when he heard the train blow its whistle as it approached from the East he turned on the depot lights, and stood by the tracks to receive a paper message from the conductor on the rear end of the train. There is evidence that the depot platform is of concrete and extends a short distance West of the depot; that it is wider than a chat walkway that begins at that point and extends West several hundred feet, its width varying from 20 to 4 feet. The evidence is that the place where the first portions of Friddle's body were found (from which it is sought to infer that there is where Friddle was first struck) is put at 25 feet West of the West end of the depot. At about 42 or 46 steps West of the West end of the depot was found more evidence of a body being mangled, and from there to a point several hundred feet West, where the body was found, was found at intervals other evidence of a human body being dragged. There was evidence pro and con as to whether the whistle and bell of the engine were blown and rung as the train passed through the town. The speed of the train was placed at anywhere from 18 to 40 miles per hour; that is, the estimates of the witnesses varied to that extent, but there is no showing that the speed of the train was slackened or increased in passing through the town.
From this the plaintiff states that it is a reasonable inference, one that justifies submitting the issues to the jury, (1) that Friddle was walking on the tracks, or perhaps along the side of the tracks; (2) that the train came upon him from behind and struck him either a direct blow (if he was walking in the rails) or a glancing blow (if walking alongside the tracks); (3) that the company failed to give Friddle warning of the approach of the train by blowing the whistle or ringing the bell; or, that it was travelling at too great a rate of speed, considering that Friddle and others of the public were licensees and likely to be using the tracks and right of way, a fact known to company; and his death was caused thereby. It may safely be said that, while company denies all of plaintiff's evidence that tends to show that it failed in its duty toward Friddle, whether he be considered a licensee or trespasser, it offered no evidence reasonably tending to establish any other theory of how he came to his death. Company argues that there is not sufficient evidence to show that he was a licensee rather than a trespasser, or that it was guilty of negligence, or to connect its alleged negligence as the cause of Friddle being killed by the train.
We think the evidence that the public continuously and notoriously used the depot platform, the chat walkway and the tracks for pedestrian uses is conclusive. Company endeavored to elicit from witnesses the fact that the public did not use the tracks when they were where the platform or chat walkway could be used, but were not successful in this. It seems that the use of company's property by the public was indiscriminate and not necessarily governed by preference for...
To continue reading
Request your trial