Roy v. St. Louis-S. F. Ry. Co.

• Decision Date: 27 October 1931
• Docket Number: Case Number: 20597
• Parties: ROY, Adm'x, v. ST. LOUIS-S. F. RY. CO.
• Court: Oklahoma Supreme Court

1931 OK 652

4 P.2d 1038

153 Okla. 270

ROY, Adm'x, v. ST. LOUIS-S. F. RY. CO.

Case Number: 20597

Supreme Court of Oklahoma

Decided: October 27, 1931

Syllabus

¶0 1. Master and Servant--Railroad not Required to Maintain Lookout for Employees Working Near Tracks or to Warn Them of Train Movements.

No duty rests upon a railway company to maintain a lookout for employees engaged in a service which requires them to be in places of danger on or near the railway tracks or to give them warning of the movement of trains, and this is true whether the employment is such as to require the employee to be on or near the track at a particular place, known to the company, or at different places on or near the track. Lancaster v. St. L. & S. F. Ry. Co., 128 Okla. 176, 261 P. 960.

2. Same--Degree of Care Required of Railroad.

As to employees, a railway company must exercise reasonable care to avoid an injury after the peril of the employee is discovered; but there is no duty to use reasonable diligence in order to discover the peril of the employee if the business of the railroad is conducted in a reasonable manner. Lancaster v. St. L. & S. F. Ry. Co., 128 Okla. 176, 261 P. 960.

3. Negligence -- Trial--Demurrer to Evidence--Failure of Proof as to Primary Negligence.

A demurrer to evidence admits the truth of all the evidence introduced and all facts which it tends to establish, as well as every fair and reasonable inference, and should be overruled unless the evidence and all inferences which a jury could reasonably draw from it are insufficient to support a verdict for plaintiff. But where the evidence fails entirely to show primary negligence the court should sustain the demurrer and instruct a verdict in favor of the defendant. Lancaster v. St. L. & S. F. Ry. Co., 128 Okla. 176, 261 P. 960.

4. Evidence--Res Gestae -- Statement by Railroad Employee Concerning Collision.

To render a statement, made by an employee of a railroad corporation, concerning collision between a train and a motor car operated on the railroad, admissible in evidence as a part of the res gestae it must appear that such statement was made substantially contemporaneous with the transaction, on the spur of the moment and induced by the happening of the event concerning which it is made and not a narrative statement of what occurred.

5. Same--Statement Held Hearsay.

A statement made by a railroad section foreman to or in the presence of another that he had given certain orders, when sought to be proven by such other person, is hearsay, and inadmissible to prove that such order was given.

6. Evidence--Inference of Fact Based on Another Inference.

An inference of a fact cannot be based upon another inference, but to be justified must be based upon known or proven facts.

Appeal from District Court, Murray County; Tom Pace, Judge.

Action by Mrs. Melissa Roy, administratix of the estate of Thomas A. Roy, deceased, against the St. Louis-San Francisco Railway Company. Judgment sustaining demurrer to plaintiff's evidence, and plaintiff appeals. Affirmed.

W. F. Semple, Randell & Randell, and Holmes Colbert, for plaintiff in error.

E. T. Miller and Cruce & Franklin, for defendant in error.

RILEY, J.

¶1 This is an action commenced by plaintiff in error to recover damages for the alleged wrongful death of Thomas A. Roy, who was killed in a collision between one of the defendant's trains and a motor car being operated upon the railroad track by one Lancaster, section foreman, and upon which Roy, who was an employee working on the section under said Lancaster, was riding. It was the same accident as the one out of which the case of Lancaster, Adm'x. v. St. L. & S. F. Ry. Co., 128 Okla. 176, 261 P. 960, arose. The record in the instant case, with certain exceptions, discloses a case substantially the same as that case, and the statement of facts concerning the accident will be found therein. Demurrer to plaintiff's evidence was sustained in the instant case as there. The same principles of law there stated are applicable in the instant case. We deem it unnecessary to again review these questions discussed therein, and deem it sufficient to apply the principles of law there applied. The only questions presented in this case that were not settled in the Lancaster Case, supra, are on the correctness of the ruling of the trial court in excluding certain evidence offered by plaintiff, and the sufficiency of certain evidence going to the charge contained in plaintiff's petition as to the alleged negligence of defendant after the discovery of the peril of the deceased.

¶2 It appears that, after the accident, the brakeman on defendant's train remained at the scene for sometime after the train had gone. Sometime, estimated by the witness as from 40 minutes to one hour after the accident, the witness Beadles went to the scene of the accident and found the brakeman there. In support of plaintiff's allegations of negligence, plaintiff sought to prove by this witness a statement made to him by the brakeman. With reference to the attempted proof, the following, record was made:

"Q. You say you saw the brakeman there? A. This man said he was a brakeman. Q. He was the railroad man in charge there when you got there? A. He said he was, yes, sir. Q. I will ask you to state what statement, if anything, he made with reference to when he saw the parties and what he did and how it happened. By Mr. Franklin: Wait a minute, we object as incompetent, irrelevant, and immaterial, not part of the res gestae, hearsay, and not binding on the defendant in this case. By Mr. Randell: We offer it as part of the res gestae. By the Court: What who said? By Mr. Randell: What the man in charge there, brakeman, party claimed to be in charge there, that he saw the bodies were there untouched, he was the man there in charge of the matter. By the Court: Objection sustained. Exception allowed. By Mr. Randell: If your Honor please, can I show dictating it into the record, may I show what I offer to prove? By the Court: Yes, sir. By Mr. Randell: We offer to show that his answer would be that this brakeman on the leading end of the train told him that he first saw them approaching in the motor car when he was seven times the distance between telephone poles, in substance, and that they were engaged in working on the car evidently and didn't see him and didn't seem to hear the alarm, but were in that position until the train struck them."

¶3 The admissibility of evidence as a part of the res gestae depends largely upon the circumstances of the particular case. But it has been said by this court that the rule is universal that to be admissible as part of the res gestae, statements must be substantially contemporaneous with the transaction; made on the spur of the moment; and induced by the happening of the events concerning which such statements are made, and not a narrative statement of what has occurred. M., O. & G. Ry. Co. v. Adams, 52 Okla. 557, 153 P. 200 and cases therein cited.

¶4 Generally it may be said that to render statements made by an employee of a corporation admissible as a part of the res gestae, they must appear to be spontaneous and so connected with the main fact under consideration as to illustrate its character, or to form, in conjunction with it, one continuous transaction. Coalgate Co. v. Hurst, 25 Okla. 588, 107 P. 657.

¶5 The showing here made does not bring the evidence offered within the rule stated above.

¶6 It was contended that the court erred in refusing to...