St. Louis & S. F. R. Co. v. Mcclelland

• Decision Date: 26 November 1912
• Docket Number: Case Number: 2167
• Citation: 1912 OK 777,128 P. 1081,36 Okla. 573
• Parties: ST. LOUIS & S. F. R. CO. v. McCLELLAND.
• Court: Oklahoma Supreme Court

1912 OK 777

128 P. 1081

36 Okla. 573

ST. LOUIS & S. F. R. CO. v. McCLELLAND.

Case Number: 2167

Supreme Court of Oklahoma

Decided: November 26, 1912

Syllabus

¶0 RAILROADS--Killing Animals--Trial--Direction of Verdict. In an action against a railroad company for the negligent killing of stock, where the plaintiff's right of recovery depends upon defendant's negligence, and where there is no evidence tending to prove negligence, and no circumstance from which negligence might be reasonably inferred, it is the duty of the court to direct a verdict in favor of defendant.

W. F. Evans, R. A. Kleinschmidt, F. E. Suits, and J. I. Howard, for plaintiff in error.

Walter W. Shaw, for defendant in error.

HARRISON, C.

¶1 This action was originally begun in the United States Court of the Northern District of the Indian Territory, and after statehood transferred to the district court of Rogers county. The plaintiff alleged that he was the owner of a certain horse; that said horse was killed by an engine running on the line of defendant company; that said killing was caused by the carelessness and negligence of the company; that said horse was worth $ 150, and asked judgment for said amount. The testimony showed that one Robert Marvin, in company with two young ladies, was driving along the road running parallel with, and something like 50 to 100 feet from, the railroad track. That in driving along the buggy road the off horse, or right-hand horse, which was on the side next to the track, became frightened at a log lying between the buggy road and the railroad; so badly frightened that he dashed ahead of the other horse, turned himself out of the buggy tugs, and turned his head toward the buggy. In doing so the lines were pulled into such condition as to render it impossible for the driver to guide or control them. When the horse turned his head toward the buggy, he could see the log at which he had taken fright, and, becoming more frightened, began backing off, taking the other horse and the buggy with him toward the railroad track. In the meantime the passenger train was coming along the track from the opposite direction to which the driver had been traveling. The evidence showed that the track was but little elevated above the ground on either side, and that, just as the train was passing, the frightened horse, still struggling in the harness, suddenly backed onto the track, just in time to be immediately struck and knocked off by the engine. The testimony of the driver was that the horse was struck immediately after he backed onto the track; that he was so badly injured that it was necessary to kill him to relieve his suffering; that the train stopped within a few yards after striking him. The testimony of the driver, Marvin, was all the evidence introduced as to how the injury occurred. The plaintiff testified as to the value of the horse, but there was no other evidence whatever, except that of the driver, as to how the accident occurred. There was no attempt to show any carelessness or negligence on the part of those operating the train; no attempt to show any lack of the exercise of due care on the part of such operators; and absolutely no evidence whatever which would warrant a reasonable inference that the agents of...