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

• Decision Date: 09 January 1912
• Docket Number: Case Number: 1250
• Citation: 120 P. 973,1912 OK 70,31 Okla. 231
• Parties: ST. LOUIS & S. F. R. CO. v. RUSHING et al.
• Court: Oklahoma Supreme Court

1912 OK 70

120 P. 973

31 Okla. 231

ST. LOUIS & S. F. R. CO. v. RUSHING et al.

Case Number: 1250

Supreme Court of Oklahoma

Decided: January 9, 1912

Syllabus

¶0 1. MASTER AND SERVANT--Injuries to Servant--Actions--Presumptions. The fact of accident carries with it no presumption of negligence on the part of the employer; and it is an affirmative fact for the injured employee to establish that the employer has been guilty of negligence.

2. NEGLIGENCE--Burden of Proof--Nature and Scope in General. A plaintiff in a civil case is not required to prove his case beyond a doubt. All that the plaintiff upon this branch of his case is required to do is to make it appear to be more probable that the injury came in whole or in part from the defendant's negligence than from any other cause.

3. MASTER AND SERVANT--Injuries to Servant--Appliances--Railway Tracks. The duty of the master to exercise ordinary care to keep its tracks in a reasonably safe condition in so far as it affects the safety of its servants engaged in operating its trains is nondelegable, and where it is averred and proven that the master, a railway company, negligently permitted its roadbed and tracks to become so defective as to cause the engine and tender of one of its trains to break apart, thereby injuring the servant, it is liable in damages to him or to his legal representatives, if the injury resulted in death. The servant is not charged with the duty of inspection. He is entitled to rely upon the assumption that the master has performed its duty, and that the track is reasonably safe for use.

4. APPEAL AND ERROR--Review--Harmless Error. The court in every stage of action must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.

5. CONSTITUTIONAL LAW--Construction--Retroactive Operation. Section 1 of the Schedule does not exempt an action for damages for personal injuries commenced subsequent to statehood, although the injury was inflicted prior thereto, from the operation of section 19, art. 2, of the Constitution, which provides: "The right of trial by jury shall be and remain inviolate and a jury for the trial of civil * * * cases in courts of record, other than county court, shall consist of twelve men. * * * In civil cases, * * * three-fourths of the whole number of jurors concurring shall have power to render a verdict."

Error from District Court, Bryan County; D. A. Richardson, Judge.

Action of Mary Rushing, for herself and as next friend of Ivy Roy Rushing, a minor, against the St. Louis & Sap Francisco Railroad Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

W. F. Evans, R. A. Kleinschmidt, T. G. Chambers, and John G. Egan, for plaintiff in error.

Utterback & Hayes, W. W. Wilkins, Randell & Randell, and Win. A. Vinson, for defendants in error.

KANE, J.

¶1 This was an action commenced by the defendants in error Mary Rushing, for herself and as next friend of Ivy Roy Rushing, a minor, against the plaintiff in error, to recover damages for personal injuries resulting in death inflicted upon Zachariah Rushing, the husband of Mary Rushing, and father of Ivy Roy Rushing, who at the time of the injury was in the employ of the defendant as a locomotive fireman. After the issues were joined, there was a trial to a jury, which returned a verdict in favor of the plaintiffs, upon which judgment was duly entered, to reverse which the proceeding in error was commenced.

¶2 The petition alleged, in substance, that the deceased came to his death by the negligence and want of ordinary care of the defendant, in that it permitted its roadbed and track, including the ties and rails at the point of the accident, to become old, worn, rotten, uneven, out of place, and out of joint to the extent that at the place where the accident occurred, which was upgrade in the direction the train was going and on a curve, the coupling apparatus and the belongings and appurtenances constituting the coupling apparatus between the engine and tender broke, causing the engine and tender to separate; that, when said engine and tender separated, said decedent was thrown upon the track between said engine and tender, and was run over and killed by the tender and cars composing the balance of the train. Counsel for plaintiff in error present their contentions in their brief under several subheads, which may be epitomized as follows: (1) It was error for the court below to refuse to instruct the jury to return a verdict for the defendant upon the evidence adduced. (2) The court erred in refusing certain instructions requested by the defendant and in its general charge to the jury. (3) That it was error for the court below to instruct the jury that a verdict might be rendered by three-fourths of their number, and in accepting the verdict concurred in by eleven members of the jury, and entering judgment.

¶3 The first contention of counsel for the defendant is based upon the theory that, notwithstanding the evidence shows that there were low joints and rotten ties in the track at the point where the accident occurred, and that such defects were liable to cause the fastenings between the engine and tender to break, the plaintiffs were not entitled to recover, because the evidence of the experts offered by the defendant was to the effect that there were no joints to exceed an inch and a half out of line, and that the track must get out of line considerably more than that before sufficient strain would be put upon the couplings between the engine and tender to cause the same to break. They say in their brief that "in order to make a case to go to the jury on the points, the plaintiff should have been required to show, not only that the track was uneven, but that it was uneven to such a degree as to endanger the pin and safety chains"; that "the question here is, how rough must a track be to give rise to the danger of breaking the coupling pin?"

¶4 In Solts v. Southwestern Cotton Oil Company, 28 Okla. 115 P. 776, the court quoted with approval from Patton v. Texas, etc., R. Co., 179 U.S. 658, 21 S. Ct. 275, 45 L. Ed. 361, to the following effect:

"The fact of accident carries with it no presumption of negligence on the part of the employer; and it is an affirmative fact for the injured employe to establish that the employer has been guilty of negligence. * * * It is not sufficient for the employe to show that the employer may have been guilty of negligence. The evidence must point to the fact that he was."

¶5 That, unquestionably, is the correct rule in actions of this kind. We think, however, that the plaintiffs have brought themselves within the rule. The evidence 'conclusively shows that a rough, uneven track with low joints, on an upgrade and on a curve, would constitute a reasonable explanation of what caused the fastenings between the engine and tender to break. All of these conditions were shown to exist, and the railroad company, which could have thrown light on the cause of the accident, if it was not one toward which the evidence of the plaintiffs was directed, did not attempt to do so. We think with the foregoing facts established, even if the evidence of the experts as to how much the track would have to be out of line before it became dangerous was correct, it would be a fair inference from the evidence that they were mistaken as to how much the track really was out of line, and that, notwithstanding their testimony on that point, it was out of line sufficient to cause the accident. Especially is this true where, as in this case, no inflexible...