Rogers v. Chicago, R.I. & P. Ry. Co.

• Court: Oklahoma Supreme Court
• Writing for the Court: BREWER, C. PER CURIAM.
• Citation: Rogers v. Chicago, R.I. & P. Ry. Co., 120 P. 1093, 32 Okla. 109, 1911 OK 474 (Okla. 1911)
• Decision Date: 18 November 1911
• Parties: ROGERS v. CHICAGO, R.I. & P. RY. CO.

120 P. 1093

32 Okla. 109, 1911 OK 474

ROGERS v. CHICAGO, R.I. & P. RY. CO.

Supreme Court of Oklahoma

November 18, 1911

Syllabus by the Court.

In a suit against a railroad for personal injuries received by a person by being struck by a train while standing on the railroad tracks, in the switchyards, not at a crossing or depot, proof that some of the hands working at a compress about a half mile from town had occasionally used the track longitudinally, where the accident occurred, as a walkway to town, but failed to show that the railroad or any of its employés permitted or knew of such use, or that the travel there was either frequent, continuous, or had continued for more than six or seven weeks, or to such an extent as to make a pathway, or to afford other means of notice of its use by pedestrians, held not sufficient to constitute the injured person a licensee.

Where all the evidence in a suit for personal injuries shows that plaintiff was standing in the center of the railroad tracks in a switchyard, near midnight, not at any crossing or a depot, and was not there by the invitation, express or implied, of the railroad, and was injured by some train which one not known, and where it is not shown that any servant of the railroad knew of his presence on the track, or of his position of danger, or even that he received injuries held, that the action of the trial court in sustaining a demurrer to plaintiff's evidence was proper.

Commissioners' Opinion, Division No. 2. Error from District Court, Jefferson County; Frank M. Bailey, Judge.

Action by Henry Rogers against the Chicago, Rock Island & Pacific Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Davis & Thomason, for plaintiff in error.

C. O Blake, H. B. Low, R. J. Roberts, and Gilbert & Bond, for defendant in error.

BREWER C.

This is a suit for damages on account of personal injuries. It was filed in the district court of Jefferson county, and was tried on January 27, 1909. At the conclusion of plaintiff's evidence, the defendant filed a demurrer to the evidence, on the ground "that the evidence in this case is wholly insufficient in law to establish a cause of action against defendant and in favor of plaintiff." The demurrer was sustained by the court, exception saved, and the cause is here to review the action of the court in sustaining the demurrer to the evidence. This is the only question presented.

The record establishes, substantially, the following facts: The plaintiff, Henry Rogers, a colored man, was working at the construction of a compress in the town of Waurika, which was a division point on the defendant's line of railroad. The principal business part of town was west of the depot; the compress was on the east side of the railroad, about a half mile south of the depot. The only road open across the tracks between the compress and the depot was a street just south of the depot. The next street south of the depot ran down to the railroad embankment, where it terminated without crossing. E street only extended to the line of the right of way; about opposite this point there were three tracks in use-- the main line on the east and two side tracks west of it. There was almost constant movement of engines and cars along this part of the road day and night, in switching back and forth. This was known to plaintiff. It was shown that the employés at the compress in going to and returning from town would cross the railroad, and sometimes would walk up the same between the tracks to the first street. On the afternoon of his injury, at night, December 14, 1907, plaintiff drew his pay, went to town, drank some whisky, and attended a colored dance until about 10:30 p. m., when plaintiff left, walked down through the business part of town, crossed over the dirt road, and climbed the railroad embankment. Soon after getting up onto the railroad, he saw a passenger train rapidly approaching on the main track, and stepped over onto the side track, where he claims he was standing, waiting for the passenger train to pass. Plaintiff does not seem to know how he received the injury he complains of, and from the nature of his wounds, and from what he does say about it, the matter is left in confusion. He did not see or hear what hit him. The plaintiff was found with his head north; his body and feet extending south. The plaintiff was calling, and when a witness reached him all plaintiff would say was: "Get me to a fire. I am freezing." He was cursing loudly and excitedly. Did not recognize the witness and colored people who came up, and whom he knew well. The witnesses say, "I took him to be drunk." The injury did not occur at any street crossing. It was in the railroad yards.

The following excerpts from plaintiff's testimony puts his case in its strongest possible light: "Q. What happened to you? A. Just as it passed, I started to make a step and something caught me; just as I was stepping off, it caught me. Q. Did you see the train that struck you? A. Not until it had struck me and had me down. Q. Did you hear it before it struck you? A. No, sir. Q. What was done with you? A. I was dragged, thrown down, and dragged a piece. Q. Were you dragged north or south? A. North. Q. Were you in the habit of traveling that road to the compress at 11 or 12 o'clock at night? A. No, sir. Q. Was that the first time you had ever gone that way that late at night? A. Yes, sir. Q. Did you stand on the passing track until this passenger train came along? A. Yes, sir. Q. You were stepping off and looking east, and the train struck your left side? A. Caught my foot. Q. Were you hit by an engine or caboose? A. Must have been a caboose, or something. Q. You knew that that track was used as a switch track, both night and day? A. Yes, sir. Q. Why didn't you look for the trains? A. I didn't think to look. Q. They have switch engines there all the time? A. Yes, sir. Q. You knew these engines run there day and night? A. Yes, sir. Q. Why didn't you look up and down the track to see if there was any switch engine there? A. I was watching the passenger train. Q. Why didn't you go between the tracks, so you would be safe? A. I didn't want to go near the passenger, so I stopped on the switch track. I thought once to get back off of it. Q. Then you changed your mind? A. I didn't think about it. Q. You don't know what part of the train struck you? A. No, sir. Q. You...