St. Louis-S. F. R. Co. v. Williams

• Decision Date: 21 January 1936
• Docket Number: Case Number: 24752
• Citation: 56 P.2d 815,1936 OK 73,176 Okla. 465
• Parties: St. LOUIS-S. F. R. CO. et al. v. WILLIAMS
• Court: Oklahoma Supreme Court

1936 OK 73

56 P.2d 815

176 Okla. 465

St. LOUIS-S. F. R. CO. et al. v. WILLIAMS

Case Number: 24752

Supreme Court of Oklahoma

Decided: January 21, 1936

Syllabus

¶0 1. NEGLIGENCE - "Invitee" Defined.

An invitee is one who possesses an invitation express or implied.

2. SAME - Care Required of Owner of Premises for Safety of Invitee.

Where a person invites or induces, expressly or by implication, another to come upon his premises, whether for business or any other purpose, it is his duty to be reasonably sure that he is not inviting him into danger, and he must use ordinary care and prudence not to injure him.

3. RAILROADS - Injuries to Invitee - Negligence in Failure to Give Signal Required by Rules Before Backing Freight Train.

Where the rules of a railroad company require that in all movements of trains, the bell must be ringing or the whistle sounded if a backup movement of a freight train is intended, held, the failure to give such signal before moving the train is negligence to invitee who is injured as a result thereof.

4. APPEAL AND ERROR - Review - Sufficiency of Evidence to Support Verdict.

In a civil action triable to a jury, where there is competent evidence reasonably tending to support the verdict of the jury and no prejudicial errors of law are shown in the instructions of the court, or its rulings on law questions presented during the trial, the verdict and findings of the jury will not be disturbed on appeal.

5. NEGLIGENCE - Constitutional Requirement That Defense of Contributory Negligence Be Left to Jury.

Article 23, sec. 6, of the Constitution of Oklahoma is not merely declaratory of the common law, but requires that the defense of contributory negligence as to questions of fact, in all cases whatsoever, shall at all times be left to the jury, and the finding of the jury upon this defense is conclusive upon the court.

Appeal from Superior Court, Creek County; C.O. Beaver, Judge.

Action by Dan Williams against the St. Louis-San Francisco Railway Company et al. Judgment for plaintiff, and defendants appeal. Affirmed.

E.T. Miller and Cruce & Franklin, for plaintiffs in error.

Johnson & Jones and Paul Cameron, for defendant in error.

PER CURIAM.

¶1 Plaintiff commenced this action on the 5th day of February, 1932, in the superior court of Creek county, Okla., by filing his petition for damages against the Louis-San Francisco Railway Company, a corporation, Fred Atkins, Cotton Smith, William Tucker, Henry Ellis, and Joe Bolin, Cotton Smith and William Tucker were never served. At the trial the court sustained a demurrer to the evidence of plaintiff against Henry Ellis and Joe Bolin. The action of the court was not excepted to by plaintiff and no appeal was prosecuted therefrom. The case proceeded to trial against the defendant railway company and Fred Atkins, and resulted in a verdict for the plaintiff for $15,000 against both defendants, and judgment was rendered on the verdict. Motion for new trial was filed, overruled and excepted to, and this appeal was lodged in this court. The parties will be referred to as they appeared in the trial court.

¶2 The stilt was brought by Dan Williams against the defendants for injuries alleged to have been sustained by plaintiff at Bristow, Okla., on or about the 16th day of May, 1931, at 2:45 a. m. The plaintiff claims that he was injured by defendants while he, as a police officer of the city of Bristow, was attempting to inspect merchandise railroad cars in the yards of the defendant railway company with and at the invitation of one Joe Bolin, an employee of the railway company. Plaintiff claims their purpose was to remove hoboes and trespassers from the train of the railway company, and to inspect the seals on the car doors and see that railroad company's property was not molested or interfered with. Plaintiff claims that he and three others arrived at the railroad yards at or about the time the train came to a stop. The four got out of the automobile, it being understood among themselves that two would inspect one side of the train and the other two would inspect the other side of the train. Plaintiff attempted to cross between two freight cars, so as to get to the other side of the train, and when he reached about the center of the space between the two cars, the defendant Fred Atkins, engineer of the train, caused the cars to move back a short distance and plaintiff's foot was caught between the drawbar and buffer iron and was crushed. Plaintiff claims, that the moving of the train was done without giving the customary signal of defendant's intention to move the train at the time, thereby preventing the plaintiff from having an opportunity to protect himself.

¶3 Plaintiff claims that he spent several weeks in each of two hospitals, and that he has paid and obligated himself to pay the sum of $735 for medical services, and that on account of this injury and the pain and suffering he endured, and still endures, and the loss of ability to work and the cost incident thereto, he is entitled to $20,000.

¶4 Defendants deny generally and plead contributory negligence. The evidence is undisputed that plaintiff was making his inspection of the train in question at the request of the chief special officer of the railway company, and on the order of the mayor and chief of police of Bristow, and in company with the defendant's special agent, Bolin. The railroad yards of the defendant railway company were within the city limits of Bristow. It was the duty of the plaintiff, as night policeman, to protect the property of the defendant railway company within the limits of the city of Bristow. In so doing, the defendants claim that plaintiff was doing the work of a servant of the railway company, and in case of injury he would be governed by the same rules of law as though he were an employee of the railway company.

¶5 The evidence shows that the plaintiff was not an employee of the railway company. Neither was he a trespasser nor licensee. However, the evidence does show that he was an invitee, notwithstanding the contention of the defendants. Why do we conclude that plaintiff was an invitee? An "invitee" has been defined to be "one who possesses an invitation either express or implied." Hise v. North Bend et al., 138 Ore. 150, 6 P.2d 30.

"One who goes upon the premises of another in a common interest or to a mutual advantage is there under the implied invitation of the owner." City of Shawnee v. Drake, 69 Okla. 209, 171 P. 727.

"Invitation is inferred where there is a common interest or mutual advantage while a license is inferred where the object is the mere pleasure or benefit of the person using it." Midland Valley R. Co. v. Littlejohn, 44 Okla. 8, 143 P. 1.

¶6 The legal duty owing to an "invitee" has been defined to be:

"While the owner, occupant or person in charge of property is not an insurer of the safety of the invitee thereon, he owes to an 'invitee' for the duty of exercising reasonable or ordinary care for his safety, and is liable for injury resulting from breach of such duty, although no element of lawlessness or wantonness enters into the act or omission complained of. The duty in this respect is an active, affirmative or positive one and is not limited to merely refraining from injurious acts, although there is also a duty to refrain from any act which may make the invitee's use of the premises dangerous or result in injury to him. So the business of the owner or occupant must be conducted with reasonable care to avoid injuring invitees." 45 C. J. 823.

"While the rule requiring reasonable care for the safety of invitees is usually announced with respect to land and

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