Chicago, R. I. & P. Ry. Co. v. Smith

1932 OK 515, 16 P.2d 226, 160 Okla. 287, 1932 Okla. LEXIS 768

• Court: Supreme Court of Oklahoma
• Decided: July 6, 1932
• Docket: 20352
• Status: Published

Opinions

ANDREWS, J.

This is an appeal from a judgment of the district court of Garfield county, Otela., under the Federal Employers’ Liability Act, in favor of the defendant in error, the plaintiff in the trial court, against the plaintiff in error, the defendant in the trial court, for damages caused by the alleged wrongful death of Thomas O. Smith, a conductor on a train owned and operated by the plaintiff in error, who was run over and killed by the locomotive of that train. Hereinafter the parties will be referred to as plaintiff and defendant, respectively, and the deceased will be referred to as the conductor.

The allegations of the petition as to negligence were denied by the defendant, who pleaded, in addition thereto, “assumption of risk” and “contributory negligence.” Under that state of tbe record it is not necessary for us to review tbe allegations of the petition.

The record shows that on the 12th day of October, 1927, a freight train, hereinafter referred to as “first No. 94,” left El Reno for Caldwell, Kan. When that train reached Otearehe, Otela., the train crew received a special train order that train No. 95, southbound, bad the right of way and for first No. 94 to wait at Enid. When first No. 94 reached the Etaid yards, it pulled onto what will be called herein a “passing track” and stopped. One of the yard crew then gave an order for it to pull onto what is called “No. 1 track,” and the train was pulled onto that track and stopped. The two brakemen then left the train to eat their evening meal. The engineer uncoupled the engine from the train, intending to put it on what is called “No. 2 track.” Before he did so, the conductor appeared and said: “* * * Bet’s take the engine and go through the pass to the coal chute.” The conductor got on the rear end of the tender, and, upon the signal of the conductor, the engine was backed onto and over the passing track until it reached a switch leading onto the main line track. That switch stand was set so as to permit the engine to pass onto the switch. The conductor changed that switch stand so that the engine would not pass onto the switch, but would proceed south over the passing track to a portion thereof called the “scale track.” The conductor then passed behind the engine and across to the fireman’s side of the track. He had a lighted lantern in his hand. He went over to a main line switch stand connecting with' the switch to the passing’ track and changed that switch stand so' as to permit a train to pass onto the main line from the switch. He then walked toward that portion of the passing track called the scale track and gave a signal to back up. The engineer, in response to the signal of the conductor, relayed to him by the fireman, slowly backed his engine over the passing track over that portion called the scale track for a short distance. After the engine had passed the: switch stand, the engineer inquired of the fireman as to the whereabouts of the conductor and stopped the engine. He remained there for a few minutes until someone signaled for the engine to move forward. He then ran the engine forward past the switch stand, changed the switch stand to permit the passage of the engine backward onto the main line, and the engine passed over the switch and onto and over the main line. When the engineer reached a point opposite the spot where the conductor was last seen walking toward the scale track, the body of the con-, ductor was seen lying on the passing track, It had been run over by the engine.

In this state the mere fact that an injury occurs carries with it no presumption of negligence. Chicago, R. I. & P. Ry. Co. v. Tate, 57 Okla. 215, 156 P. 1182. The burden is upon the plaintiff, in an action to recover damages for an injury caused by alleged negligence, to show the existence of the negligence and that the negligence was the proximate catase of the injury. Star v. Brumley, 129 Okla. 134, 263 P. 1086. A railroad company will not be held liable for personal injuries alleged to have been caused by the negligent acts of its employees, where there is no positive evidence of negligence or of facts from which negligence can be reasonably inferred. Chicago, R. I. & P. Ry. Co. v. Pedigo, 102 Okla. 72, 226 P. 72. Neither conjecture nor speculation may form a basis for a judgment. Eastern Torpedo of Ohio Co. v. Shelts, 121 Okla. 129, 247 P. 974.

Those rules must be applied to the facts shown by the record in this case under the rule adopted by this court as to what constitutes actionable negligence. That rule is:

“To constitute actionable negligence, where the wrong is not willful and intentional, three essential elements are necessary: (1) The existence of a duty on the part of the defendant to protect the plaintiff from injury; (21) failure of the defendant to perform, that duty; and (3) injury to the plaintiff resulting from such failure.” Chicago, R. I. & P. Ry. Co. v. Barton, 59 Okla. 109, 159 P. 250, and Chicago, R. I. & P. Ry. Co. v. Perkins, 115 Okla. 233, 242 P. 535.

Did the defendant fail to perform any duty to protect the conductor from injury? Unless it did, there was no actionable negligence on the part of the defendant.

At the conclusion of the plaintiff’s evidence, the defendant demurred thereto, and at the conclusion of all of the evidence, the defendant requested the court to instruct the jury to return a verdict in favor of the defendant. Those motions were overruled. The defendant contends that there was error on the part of the trial court in overruling them. That a-demurrer to the plaintiff’s evidence in a personal injury aetiOD ought to be sustained, unless it is reasonably apparent from the evidence that the injury sustained by the plaintiff was caused by some Wrongful act of the defendant in violation of a legal duty owing to the plaintiff, is well settled in this state, and it is equally well settled that where there is no evidence reasonably tending to show that the defendant was guilty of negligence, it is error for the trial court to submit that issue to the jury. Choctaw, O. & W. Ry. Co. v. Wilker, 16 Okla. 384, 84 P. 1086; Oklahoma Gas & Electric Co. v. Lukert, 16 Okla. 397, 84 P. 1076; Midland Valley Ry. Co. v. Graney, 17 Okla. 54, 185 P. 1088; Smith v. Clark, 125 Okla. 18, 256 P. 36; Lancaster v. St. Louis & S. F. Ry. Co., 128 Okla. 176, 261 P. 960; White Line Cab & Baggage Co. v. Waterman, 150 Okla. 277, 3 P. (2d) 839, and Roy v. St. Louis-S. F. Ry. Co., 153 Okla. 270, 4 P. (2d) 1038.

There was no negligence on -the part of the defendant in the engineer backing the engine past the switch stand that had been set by the conductor on the passing track, unless the engineer knew that the conductor had set that switch stand differently from what the conductor intended to set it. How the conductor intended to set it was known only to the conductor. It is urged in the briefs that the conductor must have intended to set the switch stand on the passing track so< that the engine would back over the switch onto the main line. In support of that contention, it is said that there was no other reason for the conductor changing the switch stand on the main line. We cannot agree with that contention. We cannot ascertain from the record why the conductor changed the switch stand on the main line any more than we can determine from the record why the conduct or changed the switch stand -on the passing track. If the conductor intended the engine to back over the switch onto the main line, it was unnecessary for him to change the switch stand on the passing track. The only reasonable explanation for the action of the conductor in changing the switch stand on the passing-track, if he intended the engine to pass over the switch onto the main line, was that he misunderstood the effect of the lights on that switch stand. The plaintiff endeavored to show negligence on the part of the defendant by showing that the lights on the switch stand on the passing track were placed thereon in violation of the rules of the road. That attempt failed for the reason that it was' shown that the arrangement of the lights on the switch stand on the passing track, at the time the conductor changed that switch stand, was no different than it had been for the many years during- which the conductor had worked in and through the Enid yard. If we are to infer the intent and purpose of the conductor on the night of the accident, we may as well infer that he intended for the engine to go in the way that he fixed the switch stand on the passing track for it to go-, as to in°er that he intended for the engine to go in a way that he fixed the main line switch stand. In Gypsy Oil Co. v. Ginn, 152 Okla. 30, 3 P. (2d) 714, this court held:

“An inference of negligence must be based upon something other than mere conjecture or speculation, and it is not sufficient to- introduce evidence -of a state of facts simply consistent with or indicating a mere possibility, or which suggests with equal force and leaves fully as reasonable ‘tm inference of the nonexistence of negligence. The inference- of negligence must be the more probable and more reasonable inference to be drawn from the evidence.”

Conceding that the conductor set the switch stand on the passing track differently from what he intended to set it, there is nothing- in the record to show that the engineer was aware of that fact. The condition of the lights of the switch stand on the passing- track was as well known to the conductor as it was to the engineer. The engineer knew froim the lights on that switch stand that the engine wo-uld not pass over the switch, but would go down over the passing track. He testified that he did not know which way the conductor wanted him to take the engine to the coal chute, whether over that switch to the main line and then back to the coal chute, or whether over the passing track to the main, line and then forward to the coal chute. The coal chute could have been reached by either way. No. 95 was on the passing track with the lights from its engine shining into the engine of first No. 94. The conductor might have thought that he would have the engine of first No. 94 back down the passing track past the switch stand on the passing track so as to permit No. 95 to pass over the switch onto the main line and get out of the way so that the engine of first No. 94 might take coal at the coal chute. The engineer was justified in thinking that that was the intention of the conductor. The engineer moved the engine on the signals of the conductor over a switch properly set, and it cannot be said that the engineer was negligent in moving the engine in conformity with signals therefor given by the conductor.

The record shows that there was a red lighted lantern on the rear of the tender of the engine. The movement of the engine easily could have been seen. It may be that the conductor did not watch the movement of the engine. Although the conductor intended for the engine to pass over the switch onto the main line, he was not justl- fied in talking a position on the passing-track where he might be run over by the engine. There was plenty of room between the main line track and the passing-track for him to stand. He was not justified in failing to watch the movement of the engine. There was more responsibility on him to know that the engine was not moving over the route over which he intended for it to move than there was on the engineer to know that the1 engine was not moving over the route over which the conductor intended for it to move. The conductor should have watched the movement of the engine. In the language of this court in Buss, Adm’x, v. Chicago, R. I. & P. Ry. Co., 77 Okla. 80, 186 P. 729:

“Deceased being an employee of the defendant, the law did not impose upon defendant the duty to keep a lookout for him or to give him warning of the approaching train; defendant owed him no duty except not to willfully or intentionally injure him after discovering him in a position of danger. Chicago, R. I. & P. Ry. Co. v. McIntire, 29 Okla. 797, 119 P. 1008; Bailey’s' Personal Injuries (2nd vol.) sec. 2727; 3 Elliott on Railroads (2nd Ed.) sec. 1283; Crowe, Adm’r, v. New York Cent. & H. R. B. Co., 70 Hun. 37, 23 N. Y. Supp. 1100; Aerkfetz v. Humphreys, 145 U. S. 418. 36 L. Ed. 758.”

The actions of the conductor show him to have been guilty of contributory negligence, if any primary negligence had been shown, but there was no contributory negligence for the reason that there was no primary negligence.

The plaintiff contends that the orders of the conductor to the engineer to keep the main line track in going' into Enid were not followed and that the refusal of the engineer to follow those instructions was the commencement of a chain of circumstances that resulted in the death of the conductor. In other words, the plaintiff contends that had the train proceeded down the main line track into Enid, none of the later circumstances would have occurred. We think that the taking of the train onto> the passing track by the engineer was not the proximate cause of the injury and that it did not in any way contribute to the injury.

In Chicago, Milwaukee & St. Paul Ry. Co. v. Coogan, Adm’x, 271 U. S. 472, 70 L. Ed. 1041, that court said;

“By the Federal Employers’ Liability Act, Congress took possession of the field of employers’ liability to employees in interstate transportation by rail; and all state laws upon that subject were superseded. * * * IPhe rights and obligations of the petitioner depend upon that act and applicable principles ,of eoimmon law as interpreted by the federal courts. The employer is liable for injury or death resulting in whole or in part from the negligence specified in the act; and pro-of of such, negligence is essential to recovery. The kind or amount of evidence required to establish it is not subject toi the control of the several states. This court will examine the record, and if it i-s found .that, as a matter of law, the evidence is not sufficient to sustain a finding that the carrier’s negligence was a cause of the death, judgment against the carrier will be reversed.”

In Interstate Compress Co. v. Agnew, 276 Fed. 882, that court held:

“The rule in the federal courts is that in each case tried by a jury the question of law always arises at the close of the evidence- whether or not there is such substantial evidence of the plaintiff’s cause of action as will sustain the verdict in his favor and warrant the trial court i-n refusing in the exercise of its judicial discretion to set a verdict i-n his favor aside, if rendered, and any evidence, a scintilla of evidence, is not sufficient to warrant such a refusal, and the question of law arises on a request for a peremptory instruction made 'before the case goes to the jury.”

In speaking of the duty of the state courts in trying actions under the Federal Employers’ Liability Act, in Gulf, Mobile & Northern Ry. Co. v. Wells, 275 U. S. 455, 72 L. Ed. 370, that court said:

“A judgment for damages cannot stand in an action under the Federal Employers’ Liability Act if, under the applicable principles of law as interpreted by the federal courts, the evidence was not sufficient in kind or amount to warrant a finding that the negligence alleged was the cause of the injury.”

In St. Louis & S. F. R. Co. v. Snowden, 48 Okla. 115, 149 P. 1083, this court held:

“In an action by an employee against an interstate carrier to recover damages for personal injuries received while engaged in interstate commerce, constitutional and statutory provisions of this state, which are in conflict with the Federal Employers’ Liability Act, are suspended and annulled.”

The plaintiff calls attention to the case of Toops, Adm’x, v. Atchison, T. & S. F. Ry. Co. (Kan.) 277 P. 57, which ease the plaintiff claims to be persuasive in favor of the contentions of the plaintiff. The record in that case shows that the conductor therein was run over and killed about midnight in Bolla, Kan., while the crew of his train was switching cars. The deceased was struck by certain ears kicked into a switch in violation of the orders of the defendant c.ompany. There was no man or light on the rear and no signal given to warn of the approach of the cars. The conductor had not run on that line for some 1,3. years. There was no eyewitness to the accident and the plaintiff attempted to build her case on circumstantial evidence arising from facts and circumstances surrounding his death and relied mostly upon the right of the deceased to rely upon the observance of the rules of the defendant company by its employees. In that ease, as in the instant case, it was contended that there was no evidence to establish primary negligence on .the part of the railroad company and that the deceased was in charge of the train crew and planned the switching operations which were carried forward under his orders, and that he assumed the risk. The Supreme Court of Kansas sustained the recovery. The case was taken to the Supreme Court of the United States on certiorari (A., T. S. F. Ry. Co. v. Toops, Adm’x, 281 U. S. 351, 74 L. Ed. 896) and it was reversed on the merits. That court held:

“To justify recovery in an action under - ithe Federal Employer’s Liability Act, there must be evidence from which the jury could find that the negligence complained ,of was the cause of the injury.

“The jury may not be permitted to speculate as to the cause of the injury; and the case imust be withdrawn from its consideration unless there is evidence from i which it may reasonably be inferred that the injury was caused by the employer’s negligence.

“Evidence considered, and found insufficient to go to the jury on the question whether the death of a railroad conductor, who was run down by freight cars during a switching operation at night and in the absence of eye-witnesses, was due to negligence in moving the cars without signal and without placing a light or1 flagman upon them”

■ — and said;

“It is the theory of respondent that he attempted to cross the track so as to be in a position to signal the engineer who was on that side of the train. But as the grain cars already were, or were about to be, uncoupled from the train, there was evidently no immediate purpose in his being so located. What actually took place can .only be surmised.”

In the Toops Case it was not denied that there was negligence, but the court held that it was not shown that the injury was caused by that negligence. In the instant case no negligence was admitted or proved. The evidence, together with all of the inferences Which the jury might reasonably have drawn therefrom, fails to support the contention that the injury was caused by the negligence of the defendant, but “leaves the matter in the realm of speculation and conjecture. ”

We are unable to find from the record that there was any negligence on the part of the defendant in this action. Tile verdict of the jury and the judgment of the trial court could not have been based on evidence of negligence, for there was none. The verdict and judgment are contrary to the evidence and contrary to the law. For those reasons, the judgment of the trial court is reversed, and the cause is remanded to that court, with directions to vacate the judgment and for further proceedings not inconsistent herewith.

RILEY, HEFNER, OULLIS.ON, and KORNEGAY, JJ., concur. LESTER, O. J., and CLARK, Y. C.. J., absent. SWINDALL, J., disqualified. McNEILL, J.. dissents.