St. Louis, I.M. & S.R. Co. v. Gibson
| Decision Date | 29 June 1915 |
| Docket Number | 4559. |
| Parties | ST. LOUIS, I. M. & S. R. CO. v. GIBSON. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where plaintiff's evidence shows that deceased was standing to one side of the railroad track, in a place of safety, and knew that a train was approaching, and had waited to see the train pass, and suddenly attempted to run across the track immediately in front of, and in full view of, a moving train and was struck by the train before he could run across the track, the company could not be liable, and a demurrer to the evidence should have been sustained.
The employés of a railroad company, seeing a person standing to one side of the track, in a place of safety, are not negligent in assuming that he will remain in that place of safety, and not heedlessly run upon the track, in front of moving cars. And if he does so, and it is impossible to stop the train, in time to avoid killing him, the company cannot be held liable for his death.
Where the employés of a railroad company, on approaching a crossing, fail to ring the bell and sound the whistle, if the evidence leaves a doubt as to whether the deceased saw the train, or knew that it was approaching, then the failure of defendant to ring the bell and sound the whistle would raise a question to be submitted to the jury as to whether or not that failure was the cause of his going upon the track, and thereby losing his life. But when plaintiff's own evidence is that deceased had waited to see the train pass knew it was approaching, and ran upon the track immediately in front of and in full view of the moving cars, it could not be said the failure to ring the bell and sound the whistle was in any manner responsible for his going upon the track and there is no question, on that phase of the case, to submit to the jury.
Commissioners' Opinion, Division No. 2. Error from District Court, Muskogee County; R. P. de Graffenried, Judge.
Action by C.J. Gibson as an individual and as administrator, against the St. Louis, Iron Mountain & Southern Railroad Company, a corporation. Judgment for plaintiff, and defendant brings error. Reversed.
Thomas B. Pryor, of Ft. Smith, Ark., and W. L. Curtis, of Sallisaw, for plaintiff in error.
S. H. Lattimore, of Muskogee, for defendant in error.
In this case C.J. Gibson, who was plaintiff below, filed suit to recover damages of the St. Louis, Iron Mountain & Southern Railroad Company for the death of his minor son, who, it is alleged, was negligently killed by one of defendant's passenger trains. The parties will be referred to as they appeared in the lower court. Trial was had to the court and jury, which resulted in judgment for plaintiff for $1,200, and defendant appeals to this court.
The material facts as developed by the evidence for plaintiff, briefly stated, are that Clifford Gibson, the deceased, who was 13 years old, and Tom Gibson, a brother, who was about 12 years old, had gone from their home to the home of an aunt, who lived about a mile from their home. To reach their aunt's house, they had to cross the railroad at a country crossing. And on returning, when they reached the railroad track at this crossing, they heard a train coming. They could only see the smoke of the engine coming over the hill when they first heard it. Clifford proposed to Tom that they stand on opposite sides of the track and see the people as they passed. As the train was approaching, Clifford attempted to run across the track to where his brother, Tom, was standing, and in running across the track was struck by the train and killed instantly. At the close of plaintiff's evidence, defendant demurred to the evidence, which was by the court overruled, and defendant assigns this ruling of the court as error. There are a number of assignments of error, but we will consider this one first.
The defendant's liability in this case was based upon negligence. And if the defendant was negligent, and there was any evidence which reasonably tended to establish a causal connection between that negligence and the death of deceased, then it should have been submitted to the jury, but, if there was no such evidence, then it was error for the court not to sustain the demurrer. In other words, if there was any evidence, that tended to show that the death of plaintiff's son was caused by the carelessness and negligence of the defendant, or that the defendant, after it discovered his peril, by the exercise of ordinary care and diligence could have prevented the accident and saved his life, then that evidence should have been submitted to the jury; but, if there was no such evidence, the court should have sustained the demurrer.
Upon the vital question in the case as to how the accident occurred, and what happened immediately prior to and at the moment of the accident, Tom Gibson testified on direct examination in response to questions propounded by plaintiff's counsel as follows:
And his cross-examination on this point is but a reiteration of the same. But we will copy the testimony. It is as follows:
He was the only witness introduced by the plaintiff who testified as to how the accident happened, and his testimony constituted the whole of the evidence offered by plaintiff as to the circumstances under which the accident occurred.
Then the question for us to determine, under this assignment is Does that evidence, with all the inferences which the jury could justifiably draw from it, reasonably tend to show negligence on the part of ...
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