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

• Decision Date: 10 September 1935
• Docket Number: Case Number: 24190
• Citation: 174 Okla. 167,49 P.2d 752,1935 OK 775
• Parties: ST. LOUIS-S. F. RY. CO. v. MATTHEWS
• Court: Oklahoma Supreme Court

1935 OK 775

49 P.2d 752

174 Okla. 167

ST. LOUIS-S. F. RY. CO. v. MATTHEWS

Case Number: 24190

Supreme Court of Oklahoma

Decided: September 10, 1935

Syllabus

¶0 1. Eminent Domain--Right to Recover Against Railroad Damages to Residential Property Adjoining Tracks Caused by Violent Vibrations Attending Operation of oil-Burning Locomotives.

Where residential property adjoining railroad tracks is damaged as the result of violent vibrations attending the operation of oil-burning locomotives upon said tracks, the owner of such property may, irrespective of negligence on the part of the company operating said locomotives, maintain an action against said company and thereby recover reasonable compensation for such damage under section 24, art. 2, of the Oklahoma Constitution.

2. Negligence--Proof--Mere Possibility not Sufficient Basis.

Negligence cannot be based upon proof of a mere possibility. To establish negligence. it must be shown that a given result more probably was occasioned by wrongful commission or omission of duty than by some other cause or condition inconsistent with negligence. Speculation and conjecture will not be permitted to form the basis of any conclusion.

3. Appeal and Error--Correct Judgment not Reversed Though Based on Wrong Reason.

A correct ruling, order, or judgment will not be reversed merely because the trial court assigned an erroneous reason therefor.

4. Trial--Demurrer to Evidence and Motion for Directed Verdict--Sufficiency of Evidence to Support One of Several Theories of Recovery.

If evidence is introduced reasonably tending to support one of several theories of recovery deducible from the facts alleged in a petition, it is not error for the trial court to overrule a demurrer to such evidence or the opposing party's motion for a directed verdict.

5. Appeal and Error--Instruction on Erroneous Theory of Recovery Harmless Where Correct Theory Necessarily Covered.

Where a jury is instructed only upon an erroneous theory of recovery, but the instructions given necessarily and properly cover all elements of liability under the correct theory, and the jury returns its verdict for plaintiff, such error is harmless and will not warrant a reversal of the judgment predicated upon such verdict.

Appeal from District Court, Creek CountyMark L. Bozarth, Judge.

Action by Della Matthews against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

E. T. Miller, Cruce & Franklin, and G. W. Satterfield, for plaintiff in error.

T. L. Blakemore, for defendant in error.

PER CURIAM.

¶1 This is an appeal by plaintiff in error, defendant below, from an adverse judgment of the district court of Creek county, Okla., entered upon the verdict of a jury in favor of defendant in error, plaintiff below. A proper understanding of the questions involved requires a summary statement of the proceedings in the trial court.

¶2 In her second amended petition, upon which the case proceeded to trial, plaintiff alleges in substance, that during the period from August 1, 1922, the approximate date upon which defendant first began using oil-burning locomotives in the city of Sapulpa, Okla., up to the time of filing said second amended petition, certain real estate owned by her in said city, together with the several dwelling houses located thereon, depreciated and declined in market value at least $ 2,900 as the direct and proximate result of excessive and violent vibrations from certain of said oil-burning locomotives operated during said period of time by defendant upon its main line and switch tracks adjacent and in close proximity to her premises; that such vibrations caused the foundations under said houses to crack and become insecure, the windows and doors thereof to rattle and break, the plastering therein to become loose and fall, and said premises to become generally untenantable; and that such vibrations resulted from the careless and negligent manner in which defendant operated its said locomotives. She prays judgment against defendant for $ 2,900 and costs.

¶3 The specific acts of negligence alleged by plaintiff are (1) that instead of causing fuel oil to be fed into the fireboxes of its locomotives in a gradual stream, thereby permitting continuous combustion, defendant caused the same to be fed intermittently and in globules, and (2) that instead of operating said locomotives with the doors and vents of such fireboxes open, it permitted the same to remain closed, thereby materially increasing the intensity of the vibrations resulting from combustion.

¶4 After first interposing its general demurrer, which was overruled with exception, defendant filed its answer to said second amended petition, alleging in substance that it first installed and began using oil-burning locomotives at Sapulpa some time during the month of August, 1922, and ever since had used the same there, but that its fuel appliances employed in connection therewith were of the latest approved design and its use thereof was in the generally recognized and approved manner. It denies all allegations of said second amended petition not specifically admitted in said answer and prays the judgment of the court, with costs.

¶5 Plaintiff thereupon filed her reply, denying all material allegations of said answer, and upon the issues so framed the case proceeded to trial.

¶6 At the conclusion of plaintiff's evidence, defendant demurred thereto, assigning as its reason "that the same, taken together with all inferences that may be drawn therefrom, is not sufficient to show actionable negligence, * * * and is not sufficient to entitle plaintiff to recover anything from this defendant." After argument thereon, the demurrer was overruled and an exception allowed to defendant, the trial judge commenting at the time that he was "inclined to think this case is based on negligence," and that "the testimony on negligence is very meagre, but think there might be enough to go to the jury." In view of the assertion made by plaintiff's counsel earlier during the trial, that "under the Constitution of the state of Oklahoma no individual may take another's property or damage it without adequate compensation," it is at least suggested by the above comments of the trial judge that there had been directed to his attention and he had in mind plaintiff's contention that she was entitled to recover under the constitutional provision mentioned, as well as upon the theory of alleged negligence.

¶7 When all evidence had been introduced and both parties had rested, defendant moved for an instructed verdict in its behalf, setting forth in support thereof the identical reason urged in connection with its demurrer to plaintiff's evidence. This was overruled, defendant saving its exception, and, after some further proceedings not material here, the case was submitted to the jury under instructions by which plaintiff's right to recover was expressly confined and limited to the first act of negligence alleged in her second amended petition as aforesaid. While defendant preserved its exceptions to practically all instructions not requested by it, plaintiff excepted to none. Under the instructions so given, the jury returned its verdict against defendant, fixing the amount of plaintiff's recovery at $ 1,500. Thereupon, defendant perfected its appeal to this court.

¶8 Defendant presents in its original brief only one proposition, namely: That the evidence was not sufficient to sustain the alleged negligence and not sufficient to justify submission of the case to the jury. It groups all of its assignments of error under that proposition. Let us examine this contention in the light of the record.

¶9 We agree with defendant that the evidence discloses no actionable negligence on its part. The trial court correctly instructed the jury to disregard entirely the second act of alleged negligence charged by plaintiff. There is no evidence in the record to support it. With reference to the first act of alleged negligence, plaintiff aside from establishing the frequent occurrence of violent vibrations substantially as alleged, as well as the nature and extent of the damage resulting therefrom, produced witnesses who testified in substance that some of defendant's oil-burning locomotives caused vibrations while others did not; that those causing vibrations usually were engaged in pulling heavy loads or, if standing still, "would steam up to perform their duties"; and that "the effect of feeding too much oil into the firebox at any given time, instead of feeding iii a fine spray" would cause improper combustion, an "excess explosion of gas, oil in the firebox," and result in "quite a rumbling noise." That testimony is not sufficient to prove the negligence alleged.

¶10 To establish such negligence, it was incumbent upon plaintiff to proceed one step further and show by a fair preponderance of the evidence that it was more probable, not merely possible, that the vibrations in question were caused by improper feeding of fuel on the part of defendant's employees in charge of its locomotives rather than by some other act or condition consistent with nonliability. That was...