Mo. Pac. Ry. Co. v. Gordon
| Decision Date | 19 September 1939 |
| Docket Number | Case Number: 28887 |
| Parties | MISSOURI PACIFIC RY. CO. et al. v. GORDON, Adm'x. |
| Court | Oklahoma Supreme Court |
¶0 1. RAILROADS--Nonliability for accidental death of person on track absent proof of negligence.
A railroad company will not be liable for an accidental death alleged to have been caused by negligence of its employees in the operation of a train, where there is a total lack of positive evidence of negligence, or of facts and circumstances from which such negligence can be inferred. Kurn et al. v. Cochran, 181 Okla. 205, 73 P.2d 433.
2. SAME--Conjecture and speculation no basis for judgment against railroad.
Conjecture and speculation will not be allowed to form the basis for a judgment in such an action, and a railroad company is not to be held liable for damages alleged to have resulted from the negligence of its employees, where there is no positive evidence of negligence, or circumstances from which negligence can be inferred. Lowden et al. v. Van Meter, 181 Okla. 210, 73 P.2d 424.
3. SAME--Insufficiency of evidence of negligence or breach of duty on part of defendant.
Where, in an action for damages for wrongful death, the plaintiff's evidence entirely fails to show negligence or a breach of duty on part of defendant, judgment should be for defendant.
Appeal from District Court, Wagoner County; O. H. P. Brewer, Judge.
Action for damages for alleged wrongful death by Nora Gordon, administratrix of estate of Oscar Gordon, against the Missouri Pacific Railroad Company et al. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.
Thomas B. Pryor and W. L. Curtis, for plaintiffs in error.
Bailey E. Bell, for defendant in error.
¶1 Plaintiffs in error, defendants below, appeal from a verdict and judgment rendered by the district court of Wagoner county, in an action brought by defendant in error, plaintiff below, to recover damages for the alleged wrongful death of her husband, Oscar Gordon, alleged to have been caused by the negligence of defendants' agents, servants, and employees. Hereafter we shall refer to the parties as they appeared in the trial court.
¶2 Plaintiff alleged substantially that defendants operated a railroad from northwest to southeast through the town of Wagoner; for 30 years the general public had used the right of way as a thoroughfare, with defendants' knowledge and acquiescence; between 1 and 2 a.m., May 9, 1937, defendants' train stopped for coal and water in Wagoner, the lights on said train making objects on the track in a southeasterly direction visible for a distance of more than a mile; deceased was on said track in a helpless condition, in a perilous position about 150 yards from the train.
¶3 Further, defendants' employees saw, or should have seen by the exercise of ordinary care, that deceased was on the track in a perilous position; that regardless of this, defendants' employees started said train in a southeasterly direction approaching deceased, and increased the speed of the train until it ran over and fatally injured deceased; that even after the train had started it could have been stopped, but after defendants' employees had seen deceased on the track in a position of peril they started the train and ran it a distance of 150 yards, over the body of deceased, injuring and killing him.
¶4 Plaintiff further alleged defendants owed deceased, and to her, the duty to keep a sharp lookout to observe persons on its track, and the failure to do this constituted gross negligence; that defendants owed a duty to operate the train at such a rate of speed that it could be quickly stopped to avoid injuring one who was in a perilous position, but that they utterly disregarded such duty, and ruthlessly, wantonly, and in utter disregard of the rights of deceased, and the duty owed to him, ran the train over deceased, fatally injuring him. As damages for conscious pain and suffering and wrongful death, plaintiff asked $3,000.
¶5 At the close of the evidence defendants' separate demurrers and motion for directed verdict were overruled. After receiving instructions from the court, the jury returned a verdict for plaintiff for $800, and defendants have appealed from this judgment. Numerous assignments of error are offered. However, for the purposes of this appeal, we deem it necessary to consider only one question. This is the question whether, under all the facts shown by the record, the defendants failed to perform any duty owed to protect deceased from injury or death.
¶6 We are aware of and recognize the correctness of the rule as announced in the cases cited by plaintiff that a railroad is bound to exercise that degree of care and watchfulness to protect human life that is commensurate with the probability there may be persons upon the track at a given point, and whether this has been done is a question of fact for the jury to determine under proper instructions. Atchison, T. & S. F. Ry. Co. v. Hunter, 173 Okla. 415, 49 P.2d 86. We are also familiar with the rule that negligence may be shown by circumstantial evidence and the inferences reasonably deducible therefrom, and where these facts and inferences are such that reasonable men might differ, negligence is a question for the jury. City of Enid v. Smith, 167 Okla. 381, 29 P.2d 765; Coker v. Moose, 180 Okla. 234, 68 P.2d 504; Dixon v. Gaso Pump & Burner Mfg. Co., 183 Okla. 249, 80 P.2d 678.
¶7 However, we are of the opinion certain matters preclude the acceptance of the stated rules as being decisive of the case at bar. Numerous decisions from this court have laid down the rule that the mere fact an injury has occurred carries with it no presumption of negligence, but rather is an affirmative fact for the injured party to establish, in order to show the defendant has been guilty of negligence. St. Louis & S. F. Ry. Co. v. Fick, 47 Okla. 530, 149 P. 1126; Chicago, R. I. & P. Ry. Co. v. Tate, 57 Okla. 215, 156 P. 1182; Atchison, T. & S. F. Ry. Co. v. Phillips, 158 Okla. 141, 12 P.2d 908; Chicago, R. I. & P. Ry. Co. v. Smith, Adm'x, 160 Okla. 287, 16 P.2d 226; Lowden et al. v. Van Meter, 181 Okla. 210, 73 P.2d 424.
¶8 Neither is a railroad company to be held liable for injuries alleged to have been caused by negligence of its employees where there is no positive evidence of negligence or facts from which negligence can be reasonably inferred. Chicago, R. I. & P. Ry. Co. v. Pedigo, 102 Okla. 72, 226 P. 72; Kurn et al. v. Cochran et al., 181 Okla. 205, 73 P.2d 433.
¶9 These rules, then, must be applied to the facts revealed by the record in the case at bar, under the rule so often announced by this court, that to constitute actionable negligence, where the wrong is not willful and intentional, there must be: (1) A duty on defendant's part to protect the plaintiff: (2) a failure on part of defendant to perform this duty; (3) an injury resulting to the plaintiff by reason of such a failure. St. Louis & S. F. Ry. Co. v. Lee, 37 Okla. 545, 132 P. 1072, 46 L. R. A. (N. S.) 357; Harrington v. Central States Fire Ins. Co. of Wichita, Kan., 169 Okla. 255, 36 P.2d 738, 96 A. L. R. 859.
¶10 Thus, it becomes necessary for us to consider the record in determining whether the defendant failed to perform any duty it owed to the deceased in the instant case.
¶11 For the plaintiff the only evidence directly relating to the occurrence of the tragedy was, in substance, as follows: One witness, Bessie Hammock, testified she lived about 300 feet from the south end of the coal chute where the train refueled. She was in bed between 1 and 2 a.m., the morning Oscar Gordon was killed. When the train started to pull out the lights shining in her window awakened her. The train started whistling, "like there was something on the track," and she thought a car might be stalled on the crossing. The train whistled until it got down to the crossing and stopped, and when it stopped it "kind of jarred like the brakes had been applied quick, she guesses." She told her husband she believed the train had hit a car. She heard the train whistle from the time it started until it stopped, ten or fifteen times.
¶12 Ida Seals, a witness for plaintiff, testified substantially as follows: She observed the train the night Oscar Gordon was killed, and was watching the train when it moved away from the coal chute. Then she testified:
¶13 Thereafter this witness testified the train gave five or six short blasts of the whistle and then one long blast.
¶14 The foregoing is the substance of the evidence offered by the plaintiff in regard to the actual occurrence of the tragedy, other than testimony as to the speed the train was traveling, about as fast as a person would ordinarily walk, and testimony the night of the accident was a clear night.
¶15 Opposed to this evidence was the testimony of defendants' witness, W. J. Lankford, the engineer in charge of the locomotive, and the only witness who was able to give any direct testimony as to the conditions and events leading up to the tragedy. His testimony, in substance, was as follows: He left the coal chute, working the engine hard to get up speed. There was some fog between the coal chute and the place where this man was struck. When he got through the fog he could see an object upon the track about 350 feet from him and first thought it might be some paper, as paper very often blows onto the track. Something like that struck him. Then he thought it might be a big dog on account of the position...
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