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

• Decision Date: 10 March 1914
• Docket Number: 4047. [d1]
• Citation: St. Louis & S. F. R. Co. v. Fitts, 40 Okla. 685, 140 P. 144, 1914 OK 124 (Okla. 1914)
• Parties: ST. LOUIS & S. F. R. CO. v. FITTS.
• Court: Oklahoma Supreme Court

140 P. 144

40 Okla. 685, 1914 OK 124

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

No. 4047. ^[d1]

Supreme Court of Oklahoma

March 10, 1914

Syllabus by the Court.

The fact that no fare was paid for a child by the person in charge of her upon the train did not prevent her from being a passenger, where she was riding with the knowledge and consent of the conductor.

Evidence tending to show the occurrence of a lurch or a jerk of a passenger train of sufficient violence to throw from the seat, whereon she was quietly sitting as a passenger, a child five years old, and to almost throw from their seats two adult passengers, justifies an inference of some breach of the duty owed to the injured person by the carrier, and casts the onus upon it of relieving itself of responsibility by showing that the injury was the result of an accident which the exercise of due skill, foresight, and diligence could not have prevented.

In such action, where the evidence of the plaintiff makes out a prima facie case, which is rebutted by the evidence on the part of the carrier, it is not error to refuse to take the case from the jury. It is their duty to pass upon the credibility of the witnesses and the weight of their testimony.

Instructions examined, and held to be substantially correct.

Where there is nothing in the record to indicate that the action of the jury was in any way influenced by bias, passion, or prejudice against the losing party, we are precluded from setting their verdict aside as excessive.

Error from District Court, Oklahoma County; John J. Carney, Judge.

Action by Vira Fitts, by her next friend, W. B. Fitts, against the St. Louis & San Francisco Railroad Company for personal injuries. Judgment for plaintiff, and defendant brings error. Affirmed.

W. F Evans, of St. Louis, Mo., and R. A. Kleinschmidt, of Oklahoma City, for plaintiff in error.

J. Q A. Harrod, of Oklahoma City, for defendant in error.

KANE J.

This was an action for damages for personal injuries, commenced by the defendant in error by her next friend, plaintiff below against the plaintiff in error, defendant below. Upon trial to a jury there was verdict for plaintiff, upon which judgment was duly entered, to reverse which this proceeding in error was commenced.

It was alleged that the plaintiff, a child of about five years old was riding with her mother, who had purchased a ticket upon one of the defendant's passenger trains, and that she was injured by being thrown from the seat, where she was quietly sitting, by a sudden and heavy jerk of the train forward, and that the jerk was due to the carelessness and negligence of the defendant. The grounds for reversal which we deem it necessary to notice may be stated as follows: (1) The plaintiff was not a passenger, because she did not purchase a ticket and did not pay her fare upon the train, but was riding free with her mother, who had purchased a ticket. (2) There is not sufficient evidence to establish negligence on the part of the defendant. (3) The court erred in certain instructions given to the jury. (4) The verdict of the jury is excessive and appears to have been given under the influence of passion and prejudice.

The general rule is that where one is on a passenger train of a railroad company, and there for the purpose of carriage, with the consent, express or implied, of the company, he is presumptively a passenger. 4 Elliott on Railroads (2d Ed.) vol. 4, § 1578. In the case of Southern Railway Co. v. Lee (Ky.) 101 S.W. 307, 10 L. R. A. (N. S.) 837, the court held that the fact that no fare was paid for a child by the person in charge of him upon the train did not prevent him from being a passenger, where he was riding with the knowledge and consent of the conductor.

The injury was inflicted while the train was in motion, running between two stations. In answer to questions put to her on direct examination, touching the manner of the injury, Mrs. Fitts, the mother of the injured child, testified as follows: "A. The train leapt forward right hard and threw her out of her seat. * * * Q. Whereabouts were you at the time that that jerk occurred? A. I am not positive where it was at. It was somewheres between and Ardmore however, somewheres thereabouts Madill. * * * It give a jerk, and jerked her out of her seat, and liked to have jerked me out. Q. Did she fall? A. Yes, sir. Q. Where did she fall? A. She fell and struck the seat right in front of her. * * * Q. You speak of that just being hard. Did it affect you sitting in your seat? A. I had a baby in my lap, and it liked to jerked him out of my lap, and liked to jerked my head off. Q. Was it beyond the ordinary jerk of a train? A. Yes, sir; I should say it was. * * * Q. You have been on trains, haven't you, and rode on trains? A. Yes, sir; a few times. Q. You have felt the ordinary and usual jerk from trains? A. Yes, sir; I felt it that day until I got that one. Q. Well, did you ever feel a train jerk as hard? A. No, sir."

Another witness, a passenger, testified as follows: "Q. Did anything happen while you were on the train with Mrs. Fitts that day to Vira Fitts? A. Yes, sir; she got seriously hurt on the train. Q. Well, explain to the jury now, you say she got hurt, how she got hurt. A. Well, sir, the train gave a jerk and threw her out of the seat and struck her forehead here on the arm, on the seat right in front of her. * * * Q. Do you know what had been done to the train just before the accident occurred? A. No, sir; I don't. Q. What? A. No, sir; I don't know what happened to the train, but it gave a terrible jerk, and liked to have jerked me off the seat. I was sitting in the seat nursing Mrs. Lauderdale's baby, and it liked to jerked me off my seat."

The contention of counsel for the railway company is that the foregoing evidence and other circumstances shown by the record present a case identical in principle to St. Louis & S. F. R. Co. v. Gosnell, 23 Okl. 588, 101 S.W. 1126 22 L. R. A. (N. S.) 892, and that this case must be governed by the opinion in that case. From an examination of the many cases cited by counsel for the respective parties, it is apparent that there is considerable difference of opinion as to whether proof of the injury to a passenger, resulting from a jerk of the train or car wherein he is riding, raises a presumption of negligence against the carrier. Each case, it seems, must depend largely upon its own peculiar facts in applying the rule of res ipsa loquitur. Whilst there seems to be no well-defined line of divergence between passenger and freight train cases, there is very little doubt that the rule applied to the facts developed in St. Louis & S. F. R. Co. v. Gosnell, supra,...