Mo., K. & T. R. Co. v. Minor
| Decision Date | 04 December 1917 |
| Docket Number | Case Number: 6972 |
| Citation | 75 Okla. 10,1917 OK 581,181 P. 142 |
| Parties | MISSOURI, K. & T. R. CO. v. MINOR. |
| Court | Oklahoma Supreme Court |
¶0 1. Negligence--Burden of Proof--Circumstantial Evidence.
In a civil case, all that the plaintiff is required to do in order to establish his case is to make it appear to be more probable that the injury came in whole or in part from the defendant's negligence than from any other cause, and this fact may be established by circumstantial evidence and the reasonable inferences to be drawn therefrom.
2. Railroads--Fences--Liability.
Under sections 1435 to 1438 of the Revised Laws 1910, a railroad company is liable for injuries to stock, resulting by its failure to construct and maintain a lawful fence as provided for therein.
Error from County Court, Payne County; W. H. Wilcox, Judge.
Action by J. D. Minor against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed on rehearing.
Clifford L. Jackson, W. R. Allen, and M. D. Green, for plaintiff in error.
Thos. A. Higgins and Sylvester J. Berton, for defendant in error.
¶1 This is an action instituted by Minor against the company to recover damages alleged to have been caused to him by the killing of one mare and injury to another by one of the company's trains, and it was Claimed that the company is liable because it had failed to construct and maintain a lawful fence, as provided by the statute, along its right of way at the place where the injury was alleged to have been caused.
¶2 The evidence here clearly establishes that the fence on the right of way which it was the duty of the company to maintain was not a lawful fence, and was maintained insufficiently to prevent stock from gaining access thereto, and the evidence is sufficient to support the finding of the jury that plaintiff's stock had strayed upon the right of way of the company on account of this defective condition of its fence, and that injury resulted to them by reason of that fact. The evidence of the plaintiff below was largely circumstantial, but, in our judgment, sufficient to take the case to the jury upon the question as to whether the mare killed and the one injured were upon the right of way of the company at the time thereof, and got there by reason of the defective condition of this insufficient fence. And there being evidence to support the finding of the jury, we cannot disturb the same upon appeal here.
¶3 The following authorities announce the rule in this jurisdiction, that in a civil case all that the plaintiff is required to do is to make it appear to be more probable that the injury came in whole or in part from the defendant's negligence than from any other cause, and this fact may be established by circumstantial evidence and the reasonable inferences to be drawn therefrom.
¶4 In the case of Weleetka Cotton Oil Co. v. Brookshire, 65 Okla. 293, 166 P. 408, it is said:
"It is the settled rule of this state that negligence may be established by circumstantial evidence and the reasonable inferences to be drawn therefrom, and that the proximate cause of an injury may be determined from circumstantial evidence."
¶5 And in St. L. & S. F. R. Co. v. Clampitt, 55 Okla. 686, 154 P. 40, it is said:
"The question is not presented that the happening of an accident, in case of an employe, raises a presumption of negligence, * * * for while there is no direct evidence showing what caused the deceased to fall, there was evidence showing the condition of the platform, from which the jury might draw the inference that it was the condition of the platform that was the proximate cause of the death of the plaintiff's intestate."
¶6 And in Waters-Pierce Oil Co. v. Deselms, 18 Okla. 107, 89 P. 212, it is held:
"Where an accident has occurred resulting in the death of all the persons immediately connected therewith and there is no direct proof as to how the accident occurred, the manner of its occurrence may be shown by circumstantial evidence from which the jury may infer the manner and cause of the accident if the inference is a reasonable, although not a necessary resulting fact (one)."
¶7 And in Booker Tobacco Co. v. Walker, 38 Okla. 47, 131 P. 537, it is held:
"It is only when the evidence, with all the inferences the jury could * * * draw from it, will be insufficient to support a verdict for plaintiff * * * that the court is authorized to direct a verdict for defendant; and, unless the conclusion follows, as matter of law, that no recovery can be had upon any view that can be properly taken of the facts which the evidence tends to establish, the case should be left to the jury under proper instructions. * * *"
¶8 And in Reed v. Scott, 50 Okla. 757, 151 P. 484, it is held:
¶9 See, also, St. L. & S. F. R. Co. v. Darnell, 42 Okla. 394, 141 P. 785; Coalgate Co. v. Hurst, 25 Okla. 588, 107 P. 657; C., R. I. & P. R. Co. v. Ashlock, 36 Okla. 706, 129 P. 726; Petroleum Co. v. Wantland, 28 Okla. 481, 114 P. 717.
¶10 Applying the principle announced in the cases named above, it was competent for the jury to determine the liability of the company here by circumstantial evidence, and we cannot say that the evidence here is insufficient to support the verdict of the jury fixing liability upon the company for the stock injured.
¶11 It is asserted by the plaintiff in error that under sections 1435, 1436, 1437, 1438, of the Revised Laws of 1910, it cannot be held liable for animals injured by reason of its failure to construct a fence as provided therein. In other words, that the duty to construct a fence is a statutory one, and that the penalty fixed by the Legislature for a failure to comply with these provisions of the statute is exclusive of all other penalties, and, inasmuch as the Legislature has prescribed that the company shall be liable only when stock is killed, that no other penalty can be added, and hence, under this statute, it could not be liable for injury thereto when death does not result.
¶12 With this contention of the plaintiff in error we cannot agree. The object of this statute was in part to compel the railway company to fence its right of way so as to afford protection to the landowner from injury to his stock, or, in the event the company failed and refused to construct a fence as provided in the statute, to pay all damage caused by such failure. A construction of this statute which would relieve the company from liability on account of injury to animals, and only impose liability when death ensued, would not accomplish the purpose of its enactment. It is...
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