Schaff v. Boland

• Decision Date: 08 December 1925
• Docket Number: Case Number: 15695
• Citation: 1925 OK 996,241 P. 792,115 Okla. 191
• Parties: SCHAFF, Rec., v. BOLAND.
• Court: Oklahoma Supreme Court

1925 OK 996

241 P. 792

115 Okla. 191

SCHAFF, Rec., v. BOLAND.

Case Number: 15695

Supreme Court of Oklahoma

Decided: December 8, 1925

Syllabus

¶0 1. Railroads -- Station Accident -- When Failure to Give Signals Not Negligence.

Negligence cannot be based upon the failure of those in charge of a train to ring the bell and sound the whistle, where the plaintiff pleads and proves that, while in position of safety, he knew the train was approaching.

2. Same--Noises of Train Frightening Team--Liability.

Where plaintiff predicates negligence of a railroad company on the emission of steam and unusual noises in the operation of its engine, frightening plaintiff's team and causing personal injury to plaintiff, he must plead and prove by the proper quantum of evidence that such noises which frightened his team were unnecessarily made, under such circumstances as to constitute lack of ordinary care, or that same were recklessly or wantonly made, or done to frighten his team, since a railroad company has the right to make the usual noises incident to the moving of its trains.

3. Same--Absence of Negligence.

The evidence in this case, under the foregoing rules, is not sufficient to make a case of primary negligence against defendant.

Commissioners' Opinion Division No. 2.

Error from District Court, Seminole County; Geo. C. Crump, Judge.

Action by W. C. Boland against Charles E. Schaff, receiver of Missouri, Kansas & Texas Railway Company, for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

M. D. Green and H. L. Smith, for plaintiff in error.

Pryor, Stokes & Carver, C. L. Hill, and Ira J. Banta, for defendant in error.

ESTES, C.

¶1 Parties will be referred to as they appeared in the trial court, inverse to their order here. Plaintiff, Boland, had judgment against said receiver for $ 2,999 for personal injuries. The following facts are either admitted by plaintiff, or stand uncontradicted in the record: That at Konawa, at the time of the injuries complained of, the main line of receiver's railroad track ran proximately north and south, the passenger and freight depot being immediately west of the main line; that at some distance north of the depot a so-called house track or switch was built from the main line, extending north and parallel with the main line and running just west of the depot; that the space between the said main line and house track, in which said depot was located, was 30 feet or more; that a car of salt was spotted on said house track just north of the depot, and that according to the custom, same could have been unloaded either from the west side, being the side facing the town of Konawa, or from the east side; that plaintiff, more than 60 years of age, backed the team and dray of his son to the east side of said car of salt, being between said main line and said side track, facing the north, and wrapped the lines on some convenient place of the dray, dismounted, and went into said car, and with the assistance of a Mr. Dutton was unloading the salt from the car to the dray; that the receiver's freight train coming from the south had been stopped and parked south of the depot about the noon hour in October; that according to the custom and needs of defendant, the engine and tender were disengaged from the train and had been run along the main track to a coal chute north of the depot for cleaning and coaling prior to the time the plaintiff so drove his team in between the tracks; that plaintiff knew that it was customary for the engine to be taken to the coal chute for such purpose, having drayed around said depot a year or more; that the accident occurred when said engine was backed from said coal chute past said depot and team to the south to be connected again with the train. Plaintiff testified when asked if he heard the engine backing down:

"Yes, sir; I heard it. Well, I was expecting it to back down, so far as that is concerned, I was expecting--I don't pretend to say that I heard it until I got to the door, but I was expecting it, and was watching for it, always do, and always watch my team and watch the engine when around there. * * * I got my lines, and the engine popping off and by the time they got started, the engine was done gone past the corner of the depot when my team ran off, * * * the engine was running, and that team, as soon as it got a chance, just as soon as the engine passed them, they run this way. I got hold of the lines * * * just before they struck the post."

¶2 The post referred to was a telegraph pole northeast of the main line, which was struck by the wagon, dislodging plaintiff therefrom, and inflicting the personal injuries upon him for which he sues.

¶3 The negligence alleged against defendant is that:

"Without warning, the said defendant ran a locomotive and tender down the main track of said right of way; that the said locomotive and tender ran down said track without warning to this plaintiff; that no bell was rung or whistle sounded as a warning to this plaintiff; that the engineer or fireman in charge of said locomotive left the pet cocks of said engine open, so that the same made a noise like firearms being discharged and emitting steam from the same."

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