Shuck v. Davis
| Citation | 237 P. 95,110 Okla. 196,1925 OK 329 |
| Decision Date | 21 April 1925 |
| Docket Number | 14087. |
| Parties | SHUCK v. DAVIS, Agent. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 16, 1925.
Syllabus by the Court.
A demurrer admits the truth of all the evidence introduced, and of all the 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.
The last clear chance rule does not apply where defendant does not discover the injured person's exposure to the danger in time to prevent the accident.
Record examined, and held, it was not error for the trial court to sustain the demurrer to the evidence.
Commissioner's Opinion, Division No. 5.
Appeal from District Court, Jefferson County; Cham Jones, Judge.
Action by J. A. Shuck, as administrator of the estate of Patrick Clancy, deceased, against J. C. Davis, Agent, in charge of the Chicago, Rock Island & Pacific Railway Company and the Chicago, Rock Island & Gulf Railway Company, on account of the injury and death of Patrick Clancy. From judgment for defendant, plaintiff appeals. Affirmed.
Ledbetter Stuart, Bell & Ledbetter, of Oklahoma City, and A. G Morrison, of El Reno, for plaintiff in error.
C. O Blake, W. R. Bleakmore, A. T. Boys, and W. F. Collins, all of El Reno, for defendant in error.
The plaintiff in error brought this action in the district court of Jefferson county, Okl., as administrator of the estate of Patrick Clancy, deceased, against J. C. Davis, Agent, in charge of the Chicago, R.I. & P. Ry. Co. and Chicago, R.I. & Gulf Ry. Co. on account of injuries and death of said Patrick Clancy, alleged to have been occasioned while he was in the employ of the said railway company as pumper at Amarillo Tex., on the 28th day of June, 1919. The parties will be referred to as they appeared in the lower court.
The plaintiff alleged in his amended petition that the deceased was living in one of the bunk cars located on the side of the defendant's track, and near where the accident occurred; that the deceased had occasion to go on the track known as the "Dawson" track, and approached said track diagonally, going in an easterly direction, at a public place, generally used; that coming from the west and to his back was an engine and four empty cars operated by the servants of defendant; that the engineer saw deceased going diagonally onto said track as aforesaid when the engine was still 15 or 20 feet away, and, although the engine was going but four or five miles per hour at said time, and could have been stopped before striking deceased by the use of the brakes, the engineer failed to stop, but ran over deceased and dragged him 50 or 60 feet. Plaintiff further alleged that defendant was negligent in not having a switchman on the front footboard of said engine to signal engineer, and to warn those in danger in the situation of deceased.
Defendant's answer consisted of a general denial, contributory negligence of the deceased, and pleaded the law of Texas on contributory negligence; to which answer plaintiff filed his reply of general denial of all affirmative allegations.
Thereafter the plaintiff, by leave of the court, filed an amendment to his amended petition, alleging that the plaintiff is entitled to recover under the statute of the state of Texas in force and effect at the time of the injury and death of the said Patrick Clancy, which statute governs and controls the rights and liability of parties, setting out in said amendment the Texas statute, which provides, among other things, that "every corporation, receiver, or other person, operating any railroad in this state, shall be liable in damages to any person suffering injury while he is employed by such carrier operating such railroad," etc. Rev. St. art. 6648.
The cause went to trial on the above issues, and after the conclusion of plaintiff's evidence the court sustained the defendant's demurrer to the evidence, and dismissed the cause of action. Motion for new trial was overruled, and exception allowed plaintiff, and thereupon he gave notice of appeal to the Supreme Court.
For reversal of the judgment of the trial court, the plaintiff assigns as error that the trial court erred in sustaining the demurrer of defendant to the evidence, and in discharging the jury from the consideration of the cause, over the objection and exception of plaintiff.
Many decisions of this court are cited in the brief of plaintiff announcing the rule to be observed by trial judges in their ruling upon demurrers to the evidence, and also the rule adopted by this court, to the effect that, in a damage suit dependent upon the last clear chance or discovered peril doctrine the engineer's statement as to whether he saw the injured party, and as to the...
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