Wilhelm v. Missouri, O. & G. Ry. Co.

• Court: Oklahoma Supreme Court
• Writing for the Court: BRETT, C. PER CURIAM.
• Citation: Wilhelm v. Missouri, O. & G. Ry. Co., 152 P. 1088, 52 Okla. 317, 1915 OK 894 (Okla. 1915)
• Decision Date: 09 November 1915
• Docket Number: 5360.
• Parties: WILHELM v. MISSOURI, O. & G. RY. CO.

152 P. 1088

52 Okla. 317, 1915 OK 894

WILHELM v. MISSOURI, O. & G. RY. CO.

No. 5360.

Supreme Court of Oklahoma

November 9, 1915

Syllabus by the Court.

When it is shown that a footpath across and along a railroad track has been habitually used by the public for a number of years without objection, it is a question of fact for the jury to determine whether the railroad company has not acquiesced in such use.

The rule as stated in A., T. & S. F. Ry. Co. v Cogswell, 23 Okl. 181, 99 P. 923, 20 L. R. A. (N. S.) 837, to the effect that a railroad company is liable only for willful and wanton injuries which may be inflicted upon a licensee, is not followed. But it is held that regardless of the fact that the person injured was a bare licensee upon the track of the railroad company, the company is bound to exercise that degree of care and watchfulness to protect human life that is commensurate with the probability that persons may be upon its track at any given point. And whether that has been done or not, under proper instructions is a question for the jury.

Where a railroad company makes a flying switch, in a vicinity where the employés know or should know there are likely to be human beings upon the track, with no brakeman on the cars to control them or to keep a lookout for pedestrians held, that such conduct is gross negligence.

Commissioners' Opinion, Division No. 2. Error from District Court, Bryan County; Jesse M. Hatchett, Judge.

Action by Mrs. E. J. Wilhelm against the Missouri, Oklahoma & Gulf Railway Company. There was a judgment for defendant, and plaintiff brings error. Reversed and remanded.

Wolfe, Wood & Haven, of Sherman, Tex., and Utterback, Hayes & MacDonald, of Durant, for plaintiff in error.

E. R. Jones and J. C. Wilhoit, both of Muskogee (Arthur Miller, of Kansas City, Mo., of counsel), for defendant in error.

BRETT C.

The material facts in this case are that on November 18, 1911, S. T. Wilhelm was run over by cars on the tracks of the defendant in error, the Missouri, Oklahoma & Gulf Railway Company, and killed, in the town of Kenefick, Okl. The evidence shows that the deceased was walking along a side track, which had been used ever since the railroad was built by persons living in a certain vicinity as a near cut in going from the east to the west part of Kenefick and returning; that the town was built principally on the west side of the track, and that these persons had thus used this track until, in the language of one witness, it was "all beat out there where they walked along, first one and another, alongside the track, and on the track, and everywhere"; that the deceased at the time of the accident was going toward the south, and immediately prior to the accident an engine pulling certain cars had gone north on the main line, and on reaching the north end of the side track, upon which the deceased was walking, made, what the witnesses describe as a "kick switch," kicking seven cars, with no brakeman upon them, onto this side track, where deceased was walking, which ran over the deceased and cut his body in two.

At the close of the evidence the defendant in error, as defendant below, demurred to the evidence, which was by the court sustained; and from this order the plaintiff in error, plaintiff below, appeals. We think this ruling of the trial court was clearly error.

The case narrows itself down to two controlling questions: First, was the deceased a trespasser or a licensee? and second, did the railroad company, under all the circumstances, discharge its duty to the deceased, or was it guilty of negligence? The plaintiff in error insists that the deceased was a licensee. The defendant in error insists that he was a trespasser pure and simple. And under the state of facts, shown by the evidence in this case it was the duty of the court to have submitted to the jury the usage of the public in regard to this pathway, and to have left them, under proper instructions, to determine whether or not, under all the facts and circumstances, the deceased was a licensee, with the permission of the railway company, express or implied, to use this track as a pathway, or was a mere trespasser.

In Northern Pacific Railway Co. v. Baxter, 187 F. 787, 109 C. C. A. 635, the court says:

"The vicinity was so much used by the public, persons walking and passing across, upon, and along the tracks, that a duty was imposed upon the railway company to exercise reasonable care and precaution to protect them against injury; or, at least, it was properly left to the jury to determine what was the usage of the public in that regard, and consequently to determine whether the plaintiff was a licensee, with permission of the railway company to use the track as a pathway."

In Shaw v. Georgia Railroad, 127 Ga. 8, 55 S.E. 960, the syllabus in part is:

"Under the facts in this case, it should have been submitted to the jury to say whether that part of the railroad track which was the locus of the homicide was so frequently used by the public as a pathway, with the knowledge of the railroad company, as to require the servants of the defendant engaged in the operation of trains thereon to anticipate the presence of pedestrians."

In Taylor et al. v. Delaware & Hudson Canal Company, 113 Pa. 162, 8 A. 43, 57 Am. Rep. 446, the syllabus lays down the doctrine that:

"When it is shown that a footpath across a railroad track has been habitually used by the public for many years without objection, it is a question of fact for the jury to determine whether the railroad company has not acquiesced in such use."

Besides, it is a general rule of law that, where the facts are such, whether disputed or undisputed, that different minds may honestly draw different conclusions from them, the case is one that should go to a jury. There was undisputed evidence in this case that this track had been used for a number of years by the public as a pathway without objection, and it was a question of fact for the jury to determine under all the evidence whether or not the railroad company had acquiesced in such use.

But the defendant in error contends that in any event the deceased could not have been more than a licensee, and that the railroad company owed no duty to a licensee, except to avoid willfully and wantonly injuring him, and insists that this contention is sustained by the decisions of this court. But we take issue with this statement. The cases relied upon by defendant in error as supporting this contention are Rogers v. Chicago, R.I. & P. Ry. Co., 32 Okl. 109, 120 P. 1093, and A., T. & S. F. Ry. Co. v. Cogswell, 23 Okl. 181, 99 P. 923, 20 L. R. A. (N. S.) 837. But Rogers v. C., R.I. & P. Ry. Co., is not based upon facts at all similar to those in the case at bar, and is not decisive of the question as to the duties of a railroad company to a licensee; but in the body of the opinion it is specifically stated that:

"There is no proof in the case that would tend toward establishing an inference that the railroad company or its employés might reasonably expect persons on its track at the place and time of the alleged injury. The proof in this case is insufficient, as a matter of law, to even give to the plaintiff the status of a licensee, even if that would avail him. The fact that a number of the employés of a compress, when they went to town, during a period of six or seven weeks, sometimes walked up the tracks, with no showing of even knowledge, much less permission, on the part of

the railroad, the travel being neither continuous, often, nor of long standing, no physical marks, such as a well-worn and beaten path being shown, or other circumstances that might impute or raise an inference of knowledge and permission on the part of the railroad, does not amount to a license by it to use its tracks by pedestrians."

The learned judge here specifically finds that the evidence does not even raise an inference that would give the plaintiff the status of a licensee. Then how could it be contended that the question of the duty of a railroad company to a licensee was decided in that opinion?

In Atchison, T. & S. F. Ry. Co. v. Cogswell the court was passing upon the right of the defendant...