Mo., K. & T. R. Co. v. Wolf
| Decision Date | 14 October 1919 |
| Docket Number | Case Number: 9155 |
| Citation | 184 P. 765,1919 OK 290,76 Okla. 195 |
| Parties | MISSOURI, K. & T. R. CO. v. WOLF. |
| Court | Oklahoma Supreme Court |
¶0 1.Negligence-- Elements.
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 proximately resulting from such failure.
2.Same--When Jury Question.
Where the evidence on the primary negligence of the defendant is such that reasonable and intelligent men might differ as to the facts and inferences to be drawn therefrom, the case is one for the jury.
3. Railroads--Negligence--Persons on Track--Care Required.
It is a sound and wholesome rule of law, humane and conservative of human life, that, without regard to the question whether the person killed or injured in the particular case was or was not a trespasser or a bare licensee upon the track of the railway company, the company is bound to exercise special care and watchfulness at any point upon its track, where people may be expected upon the track in considerable numbers, as, where the roadbed is constantly used by pedestrians. At such places the railway company is bound to anticipate the presence of persons on the track, to keep a reasonable lookout for them, to give warning signals, such as will apprise them of the danger of an approaching train, to moderate the speed of its train so as to enable them to escape injury; and a failure of duty in this respect will make the railway company liable to any person thereby injured, subject, of course, to the qualification that his contributory negligence may bar a recovery.
4. Same.
Where deceased was walking along the railroad track, in broad daylight, in a well settled community, near but not on a public crossing, where, to the knowledge of the railway company, the public had been for a long time prior thereto accustomed to using the track for their own convenience as a pathway, and where the track was so situated that deceased might have been clearly visible for a considerable distance ahead of the train, the duty rested upon the railway company to use such degree of care for the safety of deceased as was commensurate with the probability that some person might be using the track as a pathway, or, differently stated, to use reasonable and ordinary care to avoid injury to persons whose presence on its premises was known, or whose presence it might reasonably have anticipated, and a failure to use such care, resulting in injury and death to deceased, will make the railway company liable therefor.
5. Same--Licensees--Warning.
Nor does the fact that the defendant had placed signs along its right of way, and handed out printed cards to pedestrians, warning the public against trespassing thereon, absolve it from the duty imposed by the custom of the public which had ripened into a license, where it appears that no evidence was introduced that the injured man had ever seen one of the cards, and that this custom of the public had continued unabated after the placing of said signs and the giving out of said cards.
6. Negligence--Proximate Cause--When Jury Question.
In a suit for personal injuries the question of whether or not defendant's negligence is the proximate cause of the injury sustained should be left to the jury where the evidence is conflicting, or where men of ordinary intelligence might differ as to the effect of the evidence on such issue.
7. Railroads--Negligence--Persons on Track -- Instructions.
Instructions examined and found that no material or prejudicial error has been committed therein.
Error from District Court, Washington County; R. H. Hudson, Judge.
Action by Nancy J. Wolf against the Missouri, Kansas & Texas Railway Company for death by wrongful act. From judgment for plaintiff, the defendant brings error. Affirmed.
Clifford L. Jackson. W. R. Allen, and M. L. Green, for plaintiff in error.
A. O. Harrison, for defendant in error.
¶1 This action was commenced in the district court of Washington county, Oklahoma, by Nancy J. Wolf, widow of Charles Wolf, deceased, to recover $ 10,000 as damages on account of the death of Charles Wolf, who was killed by being struck by one of the railroad company's trains near Bartlesville, Oklahoma, on the 26th day of April, 1915. The parties will be designated as they appeared in the trial court.
¶2 The petition states, in substance, that about 6 p. m., on or about the 26th day of April, 1915, the said Charles Wolf was walking north on one of the defendant company's railway tracks at the point where Eleventh Street crosses said track, and while on said crossing and within said highway, and while in the exercise of due care and caution for his own safety, was struck by one of defendant's northbound passenger trains and instantly killed; that the point where deceased was struck was in a populous district in the suburbs of said city, and within the yard limits of said city, and that a large number of people used said track at said point daily as a footpath, with full knowledge and consent of defendant; that on the occasion when deceased met his death, the engineer in charge of said northbound passenger train was running said train at a rapid and dangerous rate of speed, far in excess of that allowed by law and the rules of said defendant at said point; that no warning signal, either by whistle or bell, was given as provided by law for said Eleventh Street crossing; that the only warning given the deceased was by four short whistles when the train was within a few feet of him, and too late for him to escape from said track; that the deceased did not know of the approach of said train; that the track approaching said point is on an upgrade and almost straight, with no obstructions, so that deceased was in plain view of the engineer on said train, and could easily have been seen by said engineer for more than a half mile before reaching the point of said accident; that the engineer in charge of said train saw, or by the exercise of reasonable and proper diligence could have seen, the deceased in ample time to have given timely warning, and to have stopped said train and thereby avoided said accident; that the death of said Charles Wolf was due directly and proximately to the carelessness, negligence, and wanton and willful acts of said engineer, while in the due course of his employment, in driving said train at an excessive and dangerous rate of speed at said point, his failure to give the statutory signal of warning when approaching said public crossing, his failure to give deceased any warning of the approach of said train until too late for him to escape from said track, and his failure to make any effort to stop said train until within thirty feet of the deceased, when it was too late to save the life of deceased; that deceased was a sober, industrious and hardworking man, at the time of his death earning $ 57 per month as wages; that he provided well for his family, spending all his wages in their behalf; that he was 63 years of age, in robust health; and that his life expectancy was twelve years.
¶3 The defendant company's answer consisted of a general denial and a plea of contributory negligence. The cause was tried to a jury, which returned a verdict for plaintiff in the sum of $ 3,000. Judgment was rendered accordingly, from which the railway company has appealed to this court.
¶4 Defendant, in its brief, specifies twenty assignments of error, but we think that all the questions raised on appeal may be adequately disposed of upon a determination of the following questions: (1) Did the court err in overruling defendant's demurrer to plaintiff's evidence, and in refusing to instruct the jury to return a verdict in favor of defendant? (2) Did the court err in its instructions to the jury?
¶5 It is a well-settled rule of law that 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 proximately resulting from such failure. C., R. I. & P. R. Co. v. Foltz, 54 Okla. 556, 154 P. 519; Clinton & C. W. R. Co. v. Dunlap, 56 Okla. 755, 156 P. 654; C., R. I. & P. R. Co. v. Penix, 61 Okla. 4, 159 P. 1141; Lusk v. Wilkes, 70 Okla. 44, 172 P. 929.
¶6 Where the evidence is such that reasonable and intelligent men might differ as to the facts and inferences to be drawn therefrom, the case is one for the jury. Littlejohn v. Midland Valley R. Co., 47 Okla. 204, 148 P. 120; New York Plate Glass Ins. Co. v. Katz, 51 Okla. 713, 152 P. 353; C., R. I. & P. R. Co. v. Felder, 56 Okla. 220. 155 P. 529; C., R. I. & P. R. Co. v. Schands, 57 Okla. 688, 157 P. 349. Taking plaintiff's evidence, together with all reasonable deductions and inferences therefrom, can it be said that reasonable and intelligent men would agree that the defendant company was not negligent under the circumstances? To answer this question we must first determine what duty, if any. the defendant company owed the deceased under the facts of this case.
¶7 Concerning the duty which a railroad company owes to a person walking on its tracks under circumstances similar to those in the instant case, and as to whether such a person is a trespasser ore bare licensee, the different state courts are in hopeless conflict. Many cases support the view favored by Elliott on Railroads, 2nd Ed., sec. 1250, which is that a bare licensee, such as the deceased in the case at bar, takes his license subject to the "concomitant risks and perils," and occupies substantially the position of a trespasser, and that the company owes him no duty of active vigilance to discover him, but only owes...
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